Chilton and Leste Consultants

Trademark Trial and Appeal Board

Aug 12, 2002

No. 75637523 (T.T.A.B. Aug. 12, 2002)

Paper No. 16
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Chilton and Leste Consultants
________
Serial No. 75/637,523
_______
Rod S. Berman of Jeffer, Mangels, Butler & Marmaro LLP for
Chilton and Leste Consultants.
Alicia P. Collins, Trademark Examining Attorney, Law Office 115
(Tomas Vlcek, Managing Attorney).
_______
Before Hanak, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Chilton and Leste Consultants has filed an application
to register the mark "TENDER LOVING CARE TLC HOME HOSPICE" and
design, as reproduced below,
for "hospice services."1
1 Ser. No. 75/637,523, filed on February 8, 1999, which alleges a date
of first use anywhere of June 30, 1995 and a date of first use in
commerce of October 1, 1995. The terms "CARE" and "HOME HOSPICE" are
disclaimed in accordance with §6(a).
Ser. No. 75/637,523
2
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 services, so resembles the
mark "TENDER LOVING CARE" and design, which is registered, as
illustrated below,
for "home nursing services,"2 as to be likely to cause confusion,
or mistake or to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
The determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
2 Reg. No. 1,313,962, issued on January 8, 1985, which sets forth a
date of first use anywhere and in commerce of February 1978; combined
affidavit §§8 and 15. While the words "TENDER LOVING" are registered,
pursuant to §2(f), on the basis of having acquired distinctiveness,
the term "CARE," in accordance with §6(a), is disclaimed.
Ser. No. 75/637,523
3
analysis, two key considerations are the similarity of the goods
and/or services and the similarity of the marks.3
Turning first to consideration of the respective
services, applicant argues that its hospice services are
"materially different" from registrant's "home nursing services."
The term "hospice," applicant notes, is defined in relevant part
by Webster's New Collegiate Dictionary (1977) as "a facility or
program designed to provide a caring environment for supplying
the physical and emotional needs of the terminally ill." The
"important differences between hospice and home nursing
services," applicant maintains, "are documented in the Chilton
Declaration, which accompanied Applicant's Request for
Reconsideration" of the final refusal.
According to such declaration, Shelly Chilton is the
"Administrator and Managing Partner" of applicant, which owns and
operates a hospice service; that hospice services "consist of a
program of medical and non-medical services offered to terminally
ill patients in dealing with numerous issues involved in dying
with dignity," including "a team approach to providing expert
medical care, pain management, and emotional and spiritual
support"; that hospice programs "are licensed by state
authorities and must comply with federal regulations"; that the
"services offered by hospice providers consist of providing
durable medical equipment, medications, medical supplies,
3 The court, in particular, pointed out that: "The fundamental inquiry
mandated by §2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods [and/or services] and
differences in the marks."
Ser. No. 75/637,523
4
bereavement counseling, physicians, registered nurses, licensed
vocational nurses, home health aids, social workers, clergy and
other[s] ... to make the end of life for terminally ill patients
as comfortable as possible"; that "[h]ospice organizations are
required to be licensed"; and that providers of such services
"are required to include the term 'hospice' in their names or to
otherwise clearly indicate that they are licensed."
Ms. Chilton also declares that "applicant advertises
its hospice services in the 'hospice' section of various
directories"; that "'[h]ospice' services are not the same as
'home nursing services,'" which "typically involve care giving by
an unlicensed care giver" and "are not specifically directed to
patients with terminal illnesses" or "to satisfying all of the
numerous physical, psychological, emotional, and spiritual needs
of the terminally ill and their families"; that home nursing
services, unlike hospice services, "are not state licensed and
federally regulated" nor do they otherwise "require certification
... or even state or local oversight," such that "[a]nyone who is
able to offer care to those who are unable to care for themselves
can advertise that they are offering home nursing services"; and
that:
In order to qualify for placement with a
hospice organization, a physician must refer
a patient who is suffering from a terminal
illness, and the physician must certify that
the patient is only subject to palliative,
rather than curative treatment; i.e., that
the patient's terminal illness is incurable
by treatments such as chemotherapy or
radiation, so that the treatment is limited
to reducing the pain and impact of the
disease and making the patient more
comfortable.
Ser. No. 75/637,523
5
In addition, Ms. Chilton declares that it has been here
experience that "patients and their families seeking hospice
treatment exercise as much care and diligence in deciding upon
the treatment and service provider as with any major life
decision, and that such persons usually rely on recommendations
of physicians and others before selecting a particular hospice
service provider"; that such patients and their families
"typically take great care in the selection of the hospice
service provider and generally interview the hospice service
provider before being admitted to the hospice program"; that it
has also been her experience with home nursing treatment that
"patients and their families ... exercise great care in
interviewing and deciding upon a provider of home nursing
services"; that in consequence thereof, person encountering
applicant's mark in connection with its hospice services "will
pay particular attention to the 'hospice' element of the mark,"
which "essentially serves as a government certification of the
hospice care provider"; that, "[o]n the other hand, the absence
of the term 'hospice' from the name of a home nursing service
provider should immediately inform a patient and the patient's
family that the home nursing provider is not a hospice care
provider"; and that "[t]ypically, people with a loved one in need
of help due to illness or surgery do not look for 'hospice'
services."
We concur with the Examining Attorney, however, that
the evidence of record is sufficient to demonstrate that, as
identified, the respective services--although specifically
Ser. No. 75/637,523
6
different--are nonetheless so closely related that, if offered
under the same or similar marks, confusion as to the source or
sponsorship thereof is likely to occur. As the Examining
Attorney correctly notes, it is well established that services or
goods need not be identical or even competitive in nature in
order to support a finding of likelihood of confusion. Instead,
it is sufficient that the services or goods are related in some
manner and/or that the circumstances surrounding their marketing
are such that they would be likely to be encountered by the same
persons under situations that would give rise, because of the
marks employed in connection therewith, to the mistaken belief
that they originate from or are in some way associated with the
same producer or provider. See, e.g., Monsanto Co. v. Enviro-
Chem Corp., 199 USPQ 590, 595-96 (TTAB 1978) and In re
International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978).
Here, as support for her contention that the services
at issue are sufficiently related, the Examining Attorney notes
that the term "hospice" is defined by The American Heritage
Dictionary of the English Language (3d ed. 1992) as "[a] program
that provides palliative care and attends to the emotional,
spiritual, social, and financial needs of terminally ill patients
at an inpatient facility or at the patient's home"4 and that,
4 Although such definition was not offered until the Examining Attorney
submitted her brief, it is settled that the Board may properly take
judicial notice of dictionary definitions. See, e.g., Hancock v.
American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ 330,
332 (CCPA 1953); University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
Ser. No. 75/637,523
7
like registrant's "home nursing services," applicant's "hospice
services," as indicated by the disclaimed words "HOME HOSPICE" in
its mark, are rendered in a patient's home. The Examining
Attorney also notes that, as stated in the Chilton declaration,
applicant's hospice services are provided by a team which
includes registered nurses and vocational nurses, which "are the
same categories of professionals who provide home nursing
services" to the patients cared for by applicant.
In addition, the Examining Attorney observes that the
record contains copies of seven use-based third-party
registrations of marks (none of which contain the word "HOSPICE")
which are registered for, inter alia, "nursing care," "nursing,"
"nursing services" or "home nursing services," on the one hand,
and "hospice care," "home health and hospice services," or
"hospice services," on the other. While such registrations are
admittedly not evidence that the different marks shown therein
are in use or that the public is familiar with them, they
nevertheless have some probative value to the extent that they
serve to suggest that the services listed therein are of the
kinds which may emanate from a single source. See, e.g., In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993)
and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 (TTAB
1988) at n. 6.
Also of record, as the Examining Attorney further
points out, "is evidence retrieved from the Internet and
Lexis/Nexis® which illustrates that the services of the parties
1372, 217 USPQ 505 (Fed. Cir. 1983); and Marcal Paper Mills, Inc. v.
Ser. No. 75/637,523
8
travel in the same channels of trade" in that "the same entity is
likely to provide home nursing services ... along with hospice
services." The former, in particular, refers to "Keweenaw Home
Nursing and Hospice" as providing both "Skilled Nursing" and
"Hospice Care" services and also lists five separate entities in
one Mississippi county under the heading "NURSING HOMES/HOSPICES
LONG TERM CARE." Other examples of Internet advertising by home
health care providers of both nursing and hospice services
include ads by such Michigan institutions as "North Woods Home
Nursing and Hospice," "Bay Shore Home Nursing and Hospice" and
"U.P. Home Nursing and Hospice" and a Virginia organization,
"Commonwealth Home Nursing & Hospice." Various directories also
list both home nursing and hospice care under the heading of home
health care services.
As to the "Lexis/Nexis" excerpts, the following
examples are representative (emphasis added):
"In partnership with ECHN is Visiting
Nurse & Health Services of Connecticut, which
provides at-home nursing care and hospice
care." -- Medical Industry Today, December 7,
1998;
"Among the services which Coram will
provide are home nursing, infusion therapy,
home respiratory therapy, durable medical
equipment, and home hospice care." -- Id.,
April 24, 1998;
"Integrated Health Services is a
diversified health services provider,
offering post-acute medical and
rehabilitative services through its
nationwide healthcare network. IHS's post-
acute services include home nursing services,
home infusion services, subacute care,
American Can Co., 212 USPQ 852, 860 (TTAB 1981) at n. 7.
Ser. No. 75/637,523
9
inpatient and outpatient rehabilitation,
respiratory therapy, hospice care, and
diagnostic care." -- Id., October 7, 1997;
"The hospice, operating since 1975,
provides Medicare-certified home nursing care
...." -- Id., March 7, 1996; and
"As a pharmacist for San Diego-based
LifeCare, which provides home nursing, home
infusion, and hospice care, Golman knows how
emergency situations affect pharmacists." --
Drug Topics, March 20, 1995.
In light of such evidence, we agree with the Examining
Attorney that, while there are differences between hospice
services and home nursing services,
the fact that the services ... differ is not
controlling in determining likelihood of
confusion. The issue is not likelihood of
confusion between particular ... services,
but the likelihood of confusion as to the
source of those ... services. See In re
Rexel Inc., 223 USPQ 830. 831 (TTAB 1984),
and cases cited therein. The evidence of
record ... is sufficient to show that the
services ... are very closely related because
they are likely to be offered by common
sources under the same mark and likely to
travel through the same trade channels.
Accordingly, and although we note that applicant does not
currently advertise its "hospice services" other than in the
"hospice" section of various directories, given the fact that
there are no limitations or other restrictions in the channels of
trade and classes of consumers for its services as set forth in
its application, such services must be presumed, as confirmed by
the record, to be rendered and advertised in the identical
channels of trade and to be directed to the same classes of
patients as are registrant's "home nursing services." The
provision of the respective services, under the same or similar
Ser. No. 75/637,523
10
marks, would therefore be likely to cause confusion as to origin
or affiliation.
As to the marks at issue, applicant maintains that the
Examining Attorney has erroneously relied on the "contention that
the phrase 'TENDER LOVING CARE' is the sole or dominant portion
of each mark" inasmuch as (footnotes omitted):
It is clear that the phrase "TENDER
LOVING CARE" is merely descriptive,
describing the type of care that persons
desire from providers of various services,
including those offered by the Applicant and
the owner of the registered mark. Indeed,
the record includes numerous third-party uses
of the phrase "TENDER LOVING CARE,"
particularly in the medical field, which
support a conclusion that this phrase is
descriptive and, as such, a weak designator
of source.
Where as here, the two marks at issue
contain a descriptive common term, consumers
of the respective services are more likely to
rely on the non-common portion of each mark
to distinguish among the services offered.
Thus, the different stylizations, designs and
other words contained in Applicant's mark are
likely to be more significant and memorable
to consumers in distinguishing the sources of
the respective services than the phrase
"TENDER LOVING CARE." Indeed, the registered
mark would have no trademark value but for
the stylization of the mark.
With respect to the Applicant's mark,
... because the term "TENDER LOVING CARE"
alone has no trademark significance, it is
the other words and design elements of the
applied-for mark that make it distinctive.
Thus, the Examiner's failure to consider the
Applicant's mark as a whole, instead of
dissecting out the "TENDER LOVING CARE"
portion of Applicant's mark, was erroneous.
When comparing the Applicant's entire mark
with the registered mark, there are several
important differences. First, Applicant
seeks registration of a stylized version of
the words "TENDER LOVING CARE" forming an
arch above a design of a heart. Second,
Ser. No. 75/637,523
11
beneath that design is the wording "TLC HOME
HOSPICE." Third, all of the wording of
Applicant's mark is in block lettering. By
way of contrast, the registered mark ...
consists of a different stylized version of
the wording "TENDER LOVING CARE," in which
these three terms appear in a column, in a
rounded typefont, with strong thick vertical
lines and thin horizontal lines for the
lettering.
There is no similarity between the
stylizations of the two marks. The
registered mark affords the owner thereof
solely the rights to the stylized mark as
registered. Because the registered mark is
not simply the words TENDER LOVING CARE in
block form, but is rather a stylized version
of these words, a comparison of the marks in
their entireties evidences that there is no
likelihood of confusion. Stated otherwise,
given the numerous physical differences
between the marks, and given that the only
commonality of the marks is the weak,
descriptive phrase "TENDER LOVING CARE[,]"
the comparison of the marks factor weighs
strongly against a finding of likelihood of
confusion.
We agree with the Examining Attorney, however, that
when considered in their entireties, the respective marks are so
similar that their contemporaneous use in connection with hospice
services and home nursing services is likely to cause confusion.
Applicant's assertion that the phrase "TENDER LOVING CARE," when
taken as a whole, is merely descriptive of the respective
services is not only unsupported, as the Examining Attorney
points out, by any evidence of record, but it ignores the fact
that, not only has applicant not disclaimed such phrase or the
words "TENDER LOVING" in its application, but such words were
registered as part of registrant's mark on the basis of their
having acquired distinctiveness as an indicator of source.
Furthermore, while we note that the record contains a definition
Ser. No. 75/637,523
12
from The American Heritage Dictionary of the English Language (3d
ed. 1992) of the term "TLC" as an "abbreviation" for "[t]ender
loving care" and also contains examples of at least four active
third-party entities which use the term "TLC" (or a variant
thereof, such as "T.L.C.") as part of their trade names and/or
service marks with respect to home health care services, there
simply is no evidence, as asserted by applicant, of "numerous
third-party uses of the phrase 'TENDER LOVING CARE,' particularly
in the medical field." The record, instead, fails to demonstrate
any such usage.5
5 Specifically, while there is a listing for "TENDER LOVING HOME HEALTH
CARE INC." as an active corporation, such entity obviously does not
use the phrase "TENDER LOVING CARE" as such and, of the other 12 firms
listed which do utilize the phrase as part of their corporate names,
none is clearly indicated to be a provider of home health care or
other medical services. Moreover, of the two which, from their trade
names, arguably might be providers of such services, namely, "TENDER
LOVING CARE PROVIDERS, INC." and "TENDER LOVING CARE RETIREMENT,
INC.," both are listed as "suspended" rather than as "active" by the
California Secretary of State/Corporations Division. Although, in
addition, applicant contends in its initial brief that "there are
numerous federal registrations for marks containing the term 'TENDER
LOVING CARE', including TENDER LOVING CARE SICK CHILD SERVICE and
design, Reg. No. 1,473,611 for 'temporary custodial care of sick non-
hospitalized children by nursing staff,'" the Examining Attorney
observes in her brief that:
It has long been the policy of the ... Board not
to take judicial notice of registrations residing
in the [U.S. Patent and Trademark] Office. In re
Lar Mor International, Inc., 221 USPQ 180 (TTAB
1983). For such registrations to properly be
made of record, an applicant must proffer copies
of the registrations from the register. In re
Duofold [Inc.], 184 USPQ 638 ... (TTAB 1984 [sic,
1974]). For this reason, evidence in the form of
third-party registrations has not been considered
by the Examining Attorney because no copies of
the relevant registrations have been properly
made of record.
In the present case, however, the single third-party registration
specified by applicant is considered to be of record, and has been
considered, inasmuch as applicant raised the same contention in its
response to the initial Office Action, but the objection thereto, as
Ser. No. 75/637,523
13
Moreover, as the Examining Attorney correctly points
out, a side-by-side comparison of the respective marks is not the
proper test to be used in determining the issue of likelihood of
confusion inasmuch as it is not the ordinary way that customers
will be exposed to the marks. Instead, 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
concomitant lack of perfect recall, whether confusion as to
source or sponsorship is likely. The proper emphasis is
accordingly on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of
marks. See, e.g., Grandpa Pidgeon's of Missouri, Inc. v.
Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973);
Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733 (TTAB 1981);
and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
Finally, while marks must be considered in their
entireties, including any descriptive matter or design element,
asserted above by the Examining Attorney, is deemed to have been
waived since the previous Examining Attorney failed to interpose the
objection in a timely manner and thereby denied applicant the
opportunity to cure the deficiency by submitting copies of the
registration(s) it regarded as pertinent. Nonetheless, even if
applicant had supported its argument with a copy of any third-party
registration(s) upon which it desired to rely, such evidence would not
in any event constitute proof of actual use of the registered mark(s)
and that the purchasing public, having become conditioned to
encountering certain services thereunder, is able to distinguish the
source thereof based upon differences in the elements of such mark(s)
other than the phrase "TENDER LOVING CARE." See, e.g., Smith Bros.
Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA
1973); AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177
USPQ 268, 269 (CCPA 1973); and In re Hub Distributing, Inc., 218 USPQ
284, 285-86 (TTAB 1983). The number and nature of any similar mark(s)
in use on the same or similar services is thus not a relevant du Pont
factor in this appeal.
Ser. No. 75/637,523
14
our principal reviewing court has indicated that, in articulating
reasons for reaching a conclusion on the issue of likelihood of
confusion, "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 [that] the ultimate
conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, according to the court,
"that a particular feature is descriptive ... with respect to the
involved goods or services is one commonly accepted rationale for
giving less weight to a portion of a mark ...." Id. Also, as
the Examining Attorney further properly points out in her brief:
[W]hen a mark consists of a word portion
and a design portion [and/or stylization of
lettering], the word, or literal, portion is
more likely to be impressed upon a
purchaser's memory and to be used in calling
for the ... services. In re Appetito
Provisions Co. [Inc.], 3 USPQ2d 1553 (TTAB
1987); Amoco Oil Co. v. Amerco, Inc., 192
USPQ 729 (TTAB 1976) ....
Applying the above principles, the Examining Attorney
argues that "the dominant portion of the registered mark is the
wording 'TENDER LOVING CARE.'" The Examining Attorney maintains
that, as to applicant's mark:
The Applicant's mark consists of the
wording "TENDER LOVING CARE," combined with
the acronym "TLC," the wording "HOME
HOSPICE," and a simple heart design. The
acronym "TLC" stands for "tender loving
care." .... Usage of this acronym in the
Applicant's mark is only reiterative of the
wording "TENDER LOVING CARE," that also
appears in the mark, and as such does not
Ser. No. 75/637,523
15
serve to alter the overall commercial
impression of the mark. The wording "HOME
HOSPICE" is the common commercial name for
the services in question and therefore has no
source indicating significance. The wording
simply indicates the genus of the Applicant's
services, and has been disclaimed apart from
the mark as shown. For these reasons, the
additional terms, along with the heart design
and the stylization of the lettering in the
Applicant's mark, do not alter the overall
commercial impression of the mark so as to
obviate the likelihood of confusion. Just as
in the case of the registered mark, the
dominant feature of the Applicant's mark is
the wording "TENDER LOVING CARE."
Here, while there are several differences in appearance
in the respective marks which, as applicant has catalogued, are
apparent on a side-by-side comparison, the connotation and
general overall commercial impression engendered by each of such
marks is substantially the same, given the dominance, for the
reasons expressed by the Examining Attorney, of the phrase
"TENDER LOVING CARE" in each of the marks. Although, admittedly,
such phrase is suggestive, rather than merely descriptive, of the
services with which it is respectively associated, in each
instance the phrase suggests the same kind of care which
customers for and patients of the services desire to receive.
Thus, in the case of each mark, the principal source-indicative
portion is the identically suggestive phrase "TENDER LOVING CARE,
given the minimal stylization of the lettering in both
applicant's mark and registrant's mark and the presence of the
reiterative abbreviation "TLC," in conjunction with the generic
term "HOME HOSPICE," in applicant's mark. Furthermore, while it
is true that applicant's mark contains a prominent heart design
which is lacking in registrant's mark, such design simply
Ser. No. 75/637,523
16
reinforces the concept, which is shared with registrant's mark,
of a service which claims to provide "tender loving care."
Purchasers of and clients for applicant's and registrant's
services would therefore regard the phrase "TENDER LOVING CARE"
as the identifying and distinguishing element of the respective
marks and would use such phrase when referring to or otherwise
asking about applicant's hospice services and registrant's home
nursing services. Confusion as to the origin or affiliation of
such closely related services is accordingly likely when rendered
under the respective marks.
Applicant additionally argues, based upon the Chilton
declaration, that confusion is nonetheless unlikely due to the
conditions of sale and sophistication of consumers for the
services at issue. Specifically, as stated in its initial brief:
The record also establishes that the
sophistication of, and care taken by,
purchasers of Applicant's services are
additional important factors supporting the
absence of likely confusion. As documented
in the Chilton Declaration, patients and
families of patients seeking hospice services
generally exercise an extraordinary amount of
care and attention in selecting the hospice
service provider. Dying persons and their
families typically rely on recommendations of
physicians and others and generally interview
the hospice service provider before being
admitted to the program. Hospice services
are selected under circumstances designed to
avoid confusion, particularly because of the
great care taken by consumers of these
services, and due to other circumstances,
such as personal interviews with service
providers and physician recommendations.
....
Persons seeking home nursing services
likewise exercise great care in selecting the
source of such services. .... Consumers
selecting each of these respective services
Ser. No. 75/637,523
17
exercise great care, and by no means select
these services on "impulse." Thus the
circumstances surrounding the selection of
hospice service providers are such that there
is little likelihood of confusion with a home
nursing service. These uncontroverted facts
in the record are inconsistent with the
Examining Attorney's theoretical speculation
that a prospective purchaser of hospice
services might casually conclude that the
registrant might offer hospice services in
addition to home nursing services.
Even though, as pointed out by applicant, neither
hospice services nor home nursing services are chosen casually
and are, instead, typically selected only after careful
consideration, it is well settled, as the Examining Attorney
properly notes in her brief, that the fact that consumers may
exercise deliberation and/or rely upon a physician's
recommendation in choosing the respective services "does not
necessarily preclude their mistaking one [service mark or]
trademark for another" or that they otherwise are entirely immune
from confusion as to source or sponsorship. Wincharger Corp. v.
Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA 1962). See
also In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988); and In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983). This would
especially be true, and not just mere speculation, in the
circumstances of this case inasmuch as the record demonstrates
that hospice services and home nursing services are frequently
provided by the same source under the same name. Conditions are
such that consumers, despite the care exercised in the selection
of hospice service providers and home nursing service providers,
could reasonably assume, due to the substantially similarity
Ser. No. 75/637,523
18
between applicant's mark and registrant's mark, that the same
entity provides both services.
Specifically, and given that purchasers of home nursing
services and, especially, hospice services, obviously are often
under substantial emotional stress at the time of choosing
providers of such services, it is reasonable that, for instance,
a family member or relative responsible for the care of a loved
one could assume, upon learning from the patient's physician that
the loved one is suffering from a terminal illness, that the
palliative care offered by applicant's hospice services is from
the same provider which renders registrant's home nursing
services, given the substantial similarity in the marks at issue.
In such a situation, the person responsible for caring for a
loved one, as applicant notes in the Chilton declaration, would
"usually rely on recommendations of physicians and others before
selecting a particular hospice service provider." Consequently,
the person making the care-giver hiring decision, upon inquiring
of and receiving from either a physician or other trusted
individuals an oral recommendation of applicant's "TENDER LOVING
CARE" hospice services, could reasonably believe--in the absence
of the opportunity for a side-by-side comparison of the marks--
that such provider is the same one as, or is sponsored by, the
"TENDER LOVING CARE" home nursing services provider which that
person has either heard of or used previously. Accordingly,
notwithstanding the high degree of care involved in selecting
providers of the respective services, customers therefor could
Ser. No. 75/637,523
19
mistakenly assume a common origin or affiliation for such
services.
Finally, applicant contends that, as set forth in its
initial brief, "[t]he Examining Attorney has not submitted any
evidence that the registered mark is well-known, let alone
famous," and also mentions that "[t]here is no evidence of any
actual confusion in the record." However, suffice it to say that
the absence of evidence of fame and of actual confusion is
clearly not evidence of the absence of fame and of actual
confusion. That is, since there is no evidence as to either of
such du Pont factors, they have no bearing on the issue of
likelihood of confusion herein.
We accordingly conclude that consumers and potential
customers, who are familiar or acquainted with registrant's
"TENDER LOVING CARE" and design mark for "home nursing services,"
would be likely to believe, upon encountering applicant's
substantially similar "TENDER LOVING CARE TLC HOME HOSPICE" and
design mark for "hospice services," that such closely related
services emanate from, or are sponsored by or associated with,
the same source.
Decision: The refusal under Section 2(d) is affirmed.