Cottage-Care, Inc.v.Damian J. Ranelli

Trademark Trial and Appeal Board

Nov 29, 2007

No. 91162038 (T.T.A.B. Nov. 29, 2007)

Mailed: November 29, 2007 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ CottageCare, Inc. v. Damian J. Ranelli _____ Opposition No. 91162038 to application Serial No. 76459756 filed on October 21, 2002 _____ Hillary A. Brooks of Marger Johnson & McCollom, P.C. for CottageCare, Inc. Damian J. Ranelli pro se. ______ Before Holtzman, Zervas and Bergsman, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: On October 21, 2002, Damian J. Ranelli filed a use- based application to register the mark COTTAGE CARE CONSTRUCTION, in standard character format, for services ultimately identified as “construction services, namely, construction and repair of buildings, restoration of buildings in the nature of painting, plumbing, roofing, framing and wiring” (hereinafter “construction services”) (Serial No. 76459756). During the prosecution of the application, applicant amended his application to seek THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91162038 2 registration under the provisions of Section 2(f) of the Trademark Act of 1946, 15 U.S.C. §1052(f), claiming June 15, 1988, as his dates of first use anywhere and first use in commerce. In addition, applicant disclaimed the exclusive right to use the word “construction.” CottageCare, Inc. opposed the registration of applicant’s mark on essentially four grounds: 1. Priority of use and likelihood of confusion with opposer’s previously used and registered mark COTTAGECARE for residential cleaning services; 2. Applicant’s mark falsely suggests a connection with opposer pursuant to Section 2(a) of the Trademark Act of 1946; 3. Applicant has abandoned his mark through nonuse; and, 4. “Applicant is not entitled to the first use or first use in commerce dates as alleged in” his application.1 1 Fed. R. Civ. P. 8(f) provides that “[a]ll pleadings shall be so construed as to substantial justice.” Because opposer pleaded the validity of applicant’s dates of use as a separate claim, we construe that claim as alleging that applicant has not used his mark in interstate commerce. Otherwise, the first use claim is redundant because it is encompassed in opposer’s claims of priority of use and likelihood of confusion and false suggestion of a connection. The Section 2(a) claim requires opposer to prove that applicant’s mark is the same or a close approximation of opposer’s previously used name or identity. Applicant has sufficient notice of our construction of opposer’s claim because opposer has specifically put the validity of applicant’s dates of use at issue, as well as alleging nonuse of applicant’s mark. Accordingly, assuming that opposer has met its burden on the Opposition No. 91162038 3 With respect to the likelihood of confusion claim, opposer alleged prior use and ownership of a federal trademark registration for the mark COTTAGECARE for residential cleaning services.2 Applicant denied the salient allegations in the notice of opposition, and asserted the affirmative defense of laches. However, because applicant did not argue the laches affirmative defense in his brief, we consider it waived. Moreover, in an opposition proceeding, laches cannot begin to run until the applicant’s mark is published for opposition. National Cable Television Association Inc. v. American Cinema Editors Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1432 (Fed. Cir. 1991). Accordingly, except for extraordinary circumstances, laches is not a viable affirmative defense in an opposition. Applicant’s laches defense has been given no further consideration. Evidentiary Issues During his testimony period, applicant filed notices of reliance on the following items: 1. Applicant’s responses to opposer’s interrogatories; issue of nonuse in interstate commerce and abandonment, it was incumbent upon applicant to introduce evidence of his first and continuous use of his mark in interstate commerce. 2 Registration No. 1563805, issued October 31, 1989; Sections 8 and 15 affidavits accepted and acknowledged. Opposition No. 91162038 4 2. A building permit issued by Waterford, Connecticut to applicant; 3. A copy of the February 20, 2003 Office Action from applicant’s application; 4. A copy of applicant’s April 27, 2004 response to the October 30, 2003 Office Action in applicant’s application; 5. Applicant’s responses to opposer’s document request Nos. 3, 15, and 16; 6. A copy of one of applicant’s advertising proofs; 7. Applicant’s August 20, 2003 response to the February 20, 2003 Office Action in applicant’s application; 8. Applicant’s responses to Opposer’s Interrogatories Nos. 44 and 45; 9. Applicant’s responses to opposer’s document request Nos. 26 and 28; 10. A letter from J. Ranelli attesting to the use of the mark COTTAGE CARE CONSTRUCTION in June 1988;3 11. A letter from applicant to opposer’s counsel regarding applicant’s responses to opposer’s written discovery; 3 Applicant identified this document as a declaration. However, because it was not signed under oath or penalty of perjury, it is simply an unverified letter. Opposition No. 91162038 5 12. Thirteen (13) declarations from applicant’s customers purporting to show applicant’s first and continuous use of the mark COTTAGE CARE CONSTRUCTION; and, 13. Two (2) additional declarations from applicant’s customers purporting to show applicant’s use of the mark COTTAGE CARE CONSTRUCTION. On November 15, 2006, opposer filed a motion to strike applicant’s notices of reliance. Opposer’s motion to strike is denied with respect to applicant’s responses to opposer’s interrogatories (Nos. 1 and 8 supra). When applicant filed his notice of reliance, he explained that he was introducing into evidence his additional responses to opposer’s interrogatories to provide additional information about his first use of the mark COTTAGE CARE CONSTRUCTION, his marketing, his customers, and the marketing environment in which the marks appear without which opposer’s reliance on applicant’s responses to opposer’s interrogatories may be misleading. Opposer, on the other hand, argued that applicant’s general statement was not sufficient to justify the admissibility of applicant’s own responses to opposer’s interrogatories. We will give applicant the benefit of the doubt, and in fairness consider applicant’s answers to opposer’s interrogatories so as eliminate any chance that the Opposition No. 91162038 6 interrogatories relied upon by opposer are misleading. Trademark Rule 2.120(j)(5), 37 CFR §2.120(j)(5). Opposer’s motion to strike is denied with respect to the building permit issued by Waterford, Connecticut to applicant (Item No. 2 supra). The building permit is a copy of an official record. Official records may be introduced into evidence pursuant to a notice of reliance. Trademark Rule 2.122(e), 37 CFR §2.122(e). Opposer’s motion to strike is granted with respect to the February 20, 2003 Office Action and applicant’s April 27, 2004 and August 20, 2003 responses to Office Actions (Item Nos. 3, 4 and 7 supra). First, because applicant’s application is part of the record pursuant to Trademark Rule 2.122(b), 37 CFR §2.122(b), the notice of reliance is unnecessary. Nevertheless, the Office Action and applicant’s responses are not relevant. Fed. R. Evid. 401. The Board is not bound by decisions of the Examining Attorney. The Board must make its own findings of fact, and that duty may not be delegated by adopting the conclusions reached by an Examining Attorney. In re Sunmarks, Inc., 32 USPQ2d 1470, 1472 (TTAB 1994); In re BankAmerica Corp., 231 USPQ 873, 876 (TTAB 1986). In addition, the allegation in an application regarding dates of use is not evidence on behalf of the applicant, nor is the specimen of use. Dates Opposition No. 91162038 7 of use and evidence of use must be established by competent evidence. Trademark Rule 2.122(b)(2), 37 CFR §2.122(b)(2). Opposer’s motion to strike is granted with respect to applicant’s responses to opposer’s document requests (Item Nos. 5 and 9 supra). Documents produced in response to a document request may not be introduced into evidence through a notice of reliance unless it falls within the provisions of Trademark Rule 2.122(e) (printed publications and official records). Trademark Rule 2.120(j)(3)(ii), 37 CFR §2.120(j)(3)(ii). Opposer’s motion to strike is granted with respect to the copy of one of applicant’s advertising proofs (Item No. 6), the letter from J. Ranelli (Item No. 10), and the letter from applicant to opposer’s counsel regarding applicant’s responses to opposer’s written discovery (Item No. 11). There is no provision in the rules for the introduction of a document through a notice of reliance unless it was included as a part of an answer to an interrogatory or falls within the provisions of Trademark Rule 2.122(e). Only a witness who is competent to authenticate the documents may introduce documents into evidence. Moreover, the letter from applicant to opposer’s counsel regarding applicant’s responses to opposer’s written discovery is not part of an interrogatory response. It is applicant’s answers to Opposition No. 91162038 8 opposer’s written discovery, not applicant’s letter regarding opposer’s answers, that are admissible. Opposer’s motion to strike is granted with respect to the declarations from applicant’s customers purporting to show applicant’s first and continuous use of the mark COTTAGE CARE CONSTRUCTION (Items Nos. 12 and 13). The declarations are, in essence, testimony from fact witnesses. Trademark Rule 2.123(b), 37 CFR §2.123(b), provides that upon written agreement, the testimony of a witness may be submitted by affidavit. Without a written agreement, there is no provision for the introduction of declarations by fact witnesses. Without a stipulation regarding the use of declarations as evidence, the statements in the declarations are hearsay. Applicant’s argument that the declarations should be admitted pursuant to Trademark Rule 2.120(j)(5), 37 CFR §2.120(j)(5), in fairness to prevent the interrogatory answers relied upon by opposer from being misleading, is not persuasive. Trademark Rule 2.120(j)(5) provides that the propounding party may file other answers to interrogatories by a notice of reliance, not any other extrinsic document. The Record By operation of Trademark Rule 2.122, 37 CFR §2.122, the record includes the pleadings and the application file Opposition No. 91162038 9 for applicant’s mark. The record also includes the following testimony and evidence: A. Opposer’s evidence. 1. Testimony deposition of Thomas Schrader, opposer’s President, CEO and founder, with attached exhibits; 2. Testimony deposition of Hope Ewbank, a paralegal at the Marger Johnson & McCollom, P.C. law firm, with attached exhibits; 3. A notice of reliance on a certified copy of opposer’s pleaded registration for the mark COTTAGECARE for “residential cleaning services” showing that the title to the registration is in opposer’s name and that the registration is subsisting; 4. A notice of reliance on dictionary definitions of the words “cottage,” “care,” and “construction”; 5. A notice or reliance on applicant’s responses to specific interrogatories; and, 6. A notice of reliance on the following items: a. Two White Pages telephone directory entries; b. Two excerpts from books/magazines purportedly in general circulation; c. Three advertisements appearing in newspapers; d. Seven Home Improvement Contractor Registration certificates from the State of Connecticut for applicant; Opposition No. 91162038 10 e. A building permit issued to applicant from Westbrook, Connecticut; and, f. A window permit issued to applicant from Madison, Connecticut. B. Applicant’s evidence. As indicated supra, applicant filed a notice of reliance on its answers to opposer’s interrogatories and on a building permit issued by Waterford, Connecticut to applicant. Applicant did not properly introduce any other testimony or evidence. Standing Because opposer has properly made its pleaded registration of record, opposer has established its standing. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Priority Because opposer’s pleaded registration is of record, Section 2(d) priority is not an issue in this case. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).4 4 However, in the Section 2(a) claim, opposer is required to prove that applicant’s mark is the same or close approximation of opposer’s previously used name or identity. Opposition No. 91162038 11 Likelihood Of Confusion Our determination of likelihood of confusion under Section 2(d) of the Lanham Act is based on an analysis of all the facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion issue. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). The relevant du Pont factors are discussed below. A. Fame We turn first to the factor of fame, because this factor plays a dominant role in cases featuring a famous or strong mark. Kenner Parker Toys Inc. v. Rose Arts Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). Famous marks are accorded more protection precisely because they are more likely to be remembered and associated in the public mind than a weaker mark. Id. Indeed, “[a] strong mark . . . casts a long shadow which competitors must avoid.” Id. A famous mark is one “with extensive public recognition and renown.” Id. See also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). In determining whether a mark is famous, we may consider sales, advertising expenditures, and the length of time the mark has been used. Bose Corp. v. QSC Audio Opposition No. 91162038 12 Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002); Blue Man Productions Inc. v. Tarmann, 75 USPQ2d 1811, 1817 (TTAB 2005). This information, however, must be placed in context (e.g., a comparison of advertising figures with competitive products, market share, reputation of the product, etc.). Bose Corp. v. QSC Audio Products Inc., supra. The evidence supporting the fame of opposer’s mark includes the following: 1. Opposer’s use of the mark COTTAGECARE in connection with cleaning since March 1989;5 2. Opposer’s cleaning services has grown from one unit in Kansas in 1989 to 70 offices in 28 states;6 3. Beginning with revenues of $85,000 in 1989, opposer has generated total revenues exceeding $112 million and average annual revenues in excess of $10 million since 1999. Revenues in 2005 were expected to exceed $11 million;7 4. Since 1997, opposer has averaged more than $1 million in annual advertising expenditures, primarily in direct mail, Yellow Pages and Internet advertising. Opposer 5 Schrader Dep., Exhibit 3. 6 Schrader Dep., Exhibit 1. In his deposition, Mr. Schrader testified that opposer has 75 offices. (Schrader Dep., p. 23). 7 Schrader Dep., Exhibit 1. Opposition No. 91162038 13 has mailed over 45 million pieces, including almost 3 million in 2005 and in 2006;8 and, 5. Opposer has received unsolicited media attention. Opposer has been cited by Inc. magazine as one of the fastest growing companies in the United States. It has been the subject of an article in the Franchise Update magazine for its marketing efforts and central telephone system. It has been named a “Blue Chip Enterprise Initiative Honoree” (1994) by Connecticut Mutual Insurance Company, The U.S. Chamber of Commerce and Nation’s Business.9 On the other hand, opposer’s testimony regarding its sales revenues and advertising expenditures are just raw figures that lack context. For example, there is no testimony or evidence regarding opposer’s market share, nor is there any testimony or evidence regarding the number of customers who engage opposer for its residential cleaning services. Moreover, opposer’s revenues are not so large as to support its claim of fame. With $11 million in annual revenues spread over 70 offices, opposer’s revenues average only $157,000 per office (or an average $392,000 per state in the 28 states where it has offices). In addition, there 8 Schrader Dep. pp. 37 and 78-81; Exhibits 1 and 23. There is some discrepancy between the information in Exhibits 1 and 23, but not enough to raise a question regarding the credibility of Mr. Schrader’s testimony. Also Mr. Schrader testified that 90% of franchisee advertising is direct mail. (Schrader Dep., p. 50). 9 Schrader Dep. pp. 116-121; Exhibits 31-34 Opposition No. 91162038 14 is no testimony or evidence regarding the effectiveness of opposer’s direct mail advertising (e.g., for every X number of pieces that are mailed, X number of inquiries are generated or the extent of opposer’s advertising in a specific geographic location). Finally, the unsolicited media attention is from business publications lauding opposer for its business initiatives. The media attention is directed to opposer as a franchisor rather than a leader in the field of cleaning. There is no evidence of unsolicited media attention from newspapers or general interest magazines that would reach ordinary consumers who would engage opposer for its services. “In view of the extreme deference that is accorded to a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of confusion analysis, we think that it is the duty of a plaintiff asserting that its mark is famous to clearly prove it.” Blue Man Productions Inc. v. Tarmann, supra at 1819. Although opposer has shown that its business has achieved some degree of success, the evidence is insufficient to support a finding that the mark is famous. Thus, although we find that opposer’s COTTAGECARE mark is a strong mark, entitled to a broad scope of protection or exclusivity of use, it is not a famous mark entitled to the extensive breadth of protection accorded truly famous marks. Opposition No. 91162038 15 B. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression We now turn to the du Pont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., supra. Applicant’s standard character format mark for COTTAGE CARE CONSTRUCTION is virtually identical in appearance, sound, meaning and commercial impression to opposer’s COTTAGECARE mark, also in standard character format. The dominant part of applicant’s mark is the term “Cottage Care” because the word “Construction” is descriptive when used in connection with construction services. Although likelihood of confusion must be determined by analyzing the marks in their entireties, “there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.” In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Moreover, applicant has conceded the descriptive nature of the word “construction” as applied to construction services by seeking registration of the mark under Section 2(f) and disclaiming it. Yamaha International v. Hoshino Gakki, 840 F.2d 1572 6 USPQ2d 1001, 1005 (Fed. Opposition No. 91162038 16 Cir. 1988) (a claim that the applicant’s mark has acquired distinctiveness under Section 2(f) is a concession that the mark is merely descriptive). Therefore, COTTAGE CARE is accorded more weight in our comparison of the marks. In re National Data Corp., supra. The difference between COTTAGECARE and COTTAGE CARE is insignificant. Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ 485, 488 n.4 (TTAB1978) (FAST-FINDER is substantially identical to FASTFINER); In re Strathmore Products, Inc., 136 USPQ 81, 82 (TTAB 1962) (the contraction of a term - - GLISSTEN to GLISS’N - - does not alter the essential character and meaning of the full word and its contraction). In view of the foregoing, we find that applicant’s mark COTTAGE CARE CONSTRUCTION is substantially similar to opposer’s mark COTTAGECARE. C. The similarity or dissimilarity and nature of the goods as described in the application and opposer’s registration and D. The similarity or dissimilarity of established, likely to continue trade channels. Applicant is seeking to register its mark for “construction services.” Opposer has registered its mark for “residential cleaning services.” In addition, opposer Opposition No. 91162038 17 has rendered janitorial services and is launching carpet cleaning services.10 Opposer argues that the services of the parties are related because construction services are within the natural areas of expansion for opposer.11 The basis for opposer’s natural scope of expansion theory appears to be Mr. Schrader’s vision that opposer is entitled to rights in gross to the mark COTTAGECARE: “That is kind of our idea of the CottageCare umbrella, offering services to the home.”12 Q. [A]re there any specific products or services that you have completely ruled out in terms of areas of expansion for the company? A. Probably other than healthcare, no. Services to the home is a very large category. And the concept is that when you have won the trust of consumer in one area, then it simply makes sense to capitalize on that trust by providing numerous and other services to that same consumer.13 10 Schrader Dep., p. 10. 11 Opposer’s Brief, pp. 39-40. In addition, Opposer contends that “customers call the CottageCare call center requesting that it perform additional services for the home.” (Opposer’s Brief, p. 40, citing Schrader Dep., p. 30-31). However, Mr. Schrader actually testified that opposer expanded into janitorial services because customers inquired whether opposer would render janitorial services for businesses. (Schrader Dep., p. 31). Finally, opposer also asserts that “businesses in the home maintenance and repair industry have already approached CottageCare regarding a consolidation of home maintenance and repair with cleaning services.” (Opposer’s Brief, p. 40, citing Schrader Dep., pp. 33-34). However, Mr. Schrader actually testified that one nationwide franchise in the field of house painting, that he would not identify, made an offer to buy opposer. Mr. Schrader did not follow-up because he was not interested in selling. (Schrader Dep., p. 33). 12 Schrader Dep., p. 11. 13 Schrader Dep., pp. 30-31. Opposition No. 91162038 18 * * * Q. [I]s it realistic for CottageCare to go beyond cleaning services of the home or office? A. I think it is not only realistic, but probable. And the category is so wide, it is challenging to know where we would go next.14 * * * A. So the fact is that there are synergies that we intend to take advantage of in the future.15 However, Mr. Schrader did not testify regarding any specific plans developed by opposer for expanding the services it offers.16 Natural expansion is one test for determining whether goods and/or services are related. It provides that the first user of a mark for specific goods or services possesses superior rights in the mark not only against subsequent users of the same or similar mark for the same or similar services, but also as against a subsequent user for the same or similar mark for any goods or services which purchasers might reasonably expect to emanate from it in the natural expansion of its business under the mark. Mason Engineering v. Mateson Chemical, 225 USPQ 956, 962 (TTAB 1985). The factors to consider in determining whether the 14 Schrader Dep., p. 32. 15 Schrader Dep., p. 34. 16 Schrader Dep., pp. 10-11, 23, 32-34 Opposition No. 91162038 19 applicant’s construction services are within the natural area of expansion for opposer include the following: 1. Whether construction services are a distinct departure from residential cleaning, janitorial, and carpet cleaning services, requiring new technology or know-how, or whether it is merely an extension of the technology involved in the first area of business; 2. The nature and purpose of applicant’s construction services and opposer’s residential cleaning, janitorial, and carpet cleaning services; 3. Whether the channels of trade and classes of consumers for applicant’s construction services and opposer’s residential cleaning, janitorial, and carpet cleaning services are the same, so that the goodwill established by opposer would carry over into construction services; and, 4. Whether other companies have expanded from residential cleaning, janitorial, and carpet cleaning services into construction services or vice versa. Id. “Construction services” are distinctly different activities than residential cleaning, janitorial, and carpet cleaning services. Construction services require a Opposition No. 91162038 20 different skill set and different tools than residential cleaning, janitorial, and carpet cleaning services. Accordingly, residential cleaning, janitorial, and carpet cleaning services are different in nature and purpose than construction services and they are a distinct departure from each other. Opposer contends that construction services and residential cleaning services move in the same channels of trade because both parties advertise in telephone books, newsletters, and newspapers.17 “Often times, these ads are juxtaposed or grouped together in advertising materials under the same headings.”18 In addition, “Internet searches for ‘CottageCare Construction’ on the Yahoo! search engine provide links to cleaning and construction company websites and promotional materials,”19 as well as links to opposer. Opposer’s arguments are not supported by its evidence. In the Yellow Pages directories introduced into evidence by opposer, carpet cleaning services, and cleaning services/maid services are listed in distinct sections.20 17 Opposer’s Brief, pp. 40-41. 18 Opposer’s Brief, p. 41. 19 Opposer’s Brief, p. 41. 20 Schrader Dep., Exhibits 6-10. Opposition No. 91162038 21 Opposer did not provide any representative listings for construction services. There were no construction companies displayed with the residential cleaning, janitorial, or carpet cleaning listings. Also, in the franchising books introduced into evidence by opposer, cleaning services were listed separate and apart from other services.21 With respect to the probative value of the Internet searches conducted by Hope Ewbank,22 we note that opposer acquires relevant key words so that CottageCare is retrieved in response to relevant searches23 and that there is no evidence that applicant has a website or any type of Internet presence. Accordingly, it is not surprising that opposer is retrieved in response to Internet searches for “CottageCare Construction” or variations thereof. The hit lists themselves do not provide enough information to persuade us that because the term “construction” may appear in the same website as “CottageCare” that construction services and cleaning services move in the same channels of trade or that the same companies offer both services. Also, the fact that some of the directories retrieved through the Internet search engines list company names in alphabetical order does not prove that residential 21 Schrader Dep., Exhibits 11-13. 22 Ewbank Dep., Exhibits 19-22. 23 Schrader Dep., p. 100 (“We have a guy on staff, who part of his job is to keep the optimization of the Internet in our favor”). Opposition No. 91162038 22 cleaning, janitorial, and carpet cleaning services move in the same channels of trade or are provided by the same companies as construction services any more than it proves that cleaning services move in the same channels of trade and are offered by the same companies as urban wildlife management services, restaurant services, and gift shop services that are also listed in the directories. Accordingly, there is no persuasive evidence that residential cleaning, janitorial, and carpet cleaning services move in the same channels of trade as construction services. There is no evidence that any other company has expanded from residential cleaning, janitorial, or carpet cleaning services into construction services or vice versa. In view of the foregoing, we find that construction services are not within opposer’s natural scope of expansion. Moreover, after carefully reviewing the record, we find no evidence that that residential cleaning, janitorial, or carpet cleaning services and construction services are marketed under circumstances likely to give rise to the mistaken belief that the services emanate from a single source. In view thereof, the dissimilarity of the services and channels of trade are factors that weigh against finding that there is a likelihood of confusion. Opposition No. 91162038 23 E. Applicant’s intent in adopting the mark COTTAGE CARE CONSTRUCTION. Opposer contends that applicant knew of opposer’s COTTAGECARE mark when he filed his COTTAGE CARE CONSTRUCTION service mark application, and therefore applicant was under a duty to avoid selecting a mark likely to cause confusion with opposer’s well-known trademark.24 Contrary to opposer’s argument, there is no basis to infer that applicant acted in bad faith. Applicant learned of opposer’s mark before he filed his application, not before he selected the mark. “[A]n inference of ‘bad faith’ requires something more than mere knowledge of a prior similar mark. That is all the record here shows.” Sweats Fashions v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987). In the case sub judice, the only du Pont factor that weighs in favor of finding a likelihood of confusion is the similarity of the marks. Because the parties use their marks in connection with different services, applicant may have reasonably believed that he was entitled to use the mark COTTAGE CARE CONSTRUCTION in connection with construction services. Accordingly, applicant’s intent in adopting and using the mark COTTAGE CARE CONSTRUCTION does not weigh in favor of finding that there is a likelihood of confusion. 24 Applicant’s Brief, p. 48. Opposition No. 91162038 24 F. Balancing the factors. Considering all the relevant factors, and for the reasons we have discussed, we conclude that there is no likelihood of confusion between opposer’s mark COTTAGECARE for residential cleaning, janitorial and carpet cleaning services and applicant’s mark COTTAGE CARE CONSTRUCTION for construction services. While the marks are substantially similar, the services must be viewed in the context of determining whether a reasonable consumer would be confused as to source or sponsorship. There is no evidence to show that the services are related or that the services would be marketed under circumstances likely to lead to the mistaken belief that the services emanate from the same source. In other words, there is nothing on which we can base a finding that consumers would believe that the same companies render residential cleaning, janitorial, and carpet cleaning services, as well as construction services or that there is some connection between the services. The similarity of the marks alone is not, in and of itself, dispositive. Even identical marks may coexist in remote fields. Accordingly, applicant’s mark COTTAGE CARE CONSTRUCTION for “construction services, namely, construction and repair of buildings, restoration of buildings in the nature of painting, plumbing, roofing, framing and wiring” does not so resemble opposer’s mark COTTAGECARE for residential cleaning, Opposition No. 91162038 25 janitorial, and carpet cleaning services as to be likely to cause confusion. Applicant’s Use Of His Mark In Commerce Applicant filed his application based on his claim that as of June 15, 1988, applicant used the mark COTTAGE CARE CONSTRUCTION in connection with construction services in commerce, and that the mark is still in use in such commerce. Section 1(a) of the Trademark Act of 1946, 15 U.S.C. §1051), provides that “[t]he owner of a trademark used in commerce may request registration of its trademark on the principal register.” The application must include applicant’s date of first use of the mark and the date of first use of the mark in commerce. Id. Use in commerce means the “bona fide use of a mark in the ordinary course of trade . . . on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.” Section 45 of the Trademark Act of 1946, 15 U.S.C. §1127. “The word ‘commerce’ means all commerce which may lawfully be regulated by Congress.” Id. Opposition No. 91162038 26 As indicated supra, the allegation in an application regarding dates of use is not evidence on behalf of the applicant; therefore, evidence of use must be established by competent evidence. Trademark Rule 2.122(b)(2), 37 CFR §2.122(b)(2). Applicant introduced the following evidence regarding its first use of the mark COTTAGE CARE CONSTRUCTION: In June, applicant was hired using the mark COTTAGE CARE CONSTRUCTION to perform extensive remodeling and construction services in the expansion of a residence at 53 Shore Drive, Old Lyme, Connecticut, owned by J Ranelli (Applicant’s father). In October of 1988, applicant was hired under the mark COTTAGE CARE CONSTRUCTION to install a roof on the original structure and 20’ x 28’ additional and construct a 20’ x 22’ garage located at 2 Glenvale Street, Waterford, Connecticut owned by Kenneth Prescott.25 [A]pplicant performed construction services using the mark COTTAGE CARE CONSTRUCTION in Southern New England from 1988 to present in the amount of approximately $892,931.01.26 [M]uch of applicant’s marketing and promotion, under the mark COTTAGE CARE CONSTRUCTION is based on community involvement and good will for which money is not necessarily “spent.”27 Applicant has continuously and solely provided construction services in connection with the mark COTTAGE CARE 25 Applicant’s response to Interrogatory No. 2. 26 Applicant’s response to Interrogatory No. 3. 27 Applicant’s response to Interrogatory No. 5. In his application, applicant lists his address as Westbrook, Connecticut. Opposition No. 91162038 27 CONSTRUCTION in Southern New England since 1988.28 In response to opposer’s discovery requests, applicant provided opposer with declarations from individuals for whom applicant purportedly did work. Opposer introduced into evidence Freedom of Information Requests and the responses thereto from the various municipalities (e.g., building permit applications, building permits, and cover letters from the municipalities) identified in applicant’s declarations.29 All the municipalities were located in Connecticut. During the prosecution of his application, applicant amended his application to seek registration under the provisions of Section 2(f) of the Trademark Act of 1946, 15 U.S.C. §1052(f), based on applicant’s substantially exclusive and continuous use of his mark in commerce. In support of his claim of acquired distinctiveness, applicant submitted affidavits from customers attesting to applicant’s use of the mark COTTAGE CARE CONSTRUCTION.30 Each and every one of the affiants is a resident of Connecticut. There is 28 Applicant’s response to Interrogatory No. 6. 29 Ewbank Dep., pp. 9-13; Exhibits 1-18. 30 As indicated supra, the application file is part of the opposition record. The declarations from applicant’s customers are part of the application file. Although the declarations may not be relied on as evidence on behalf of applicant, they may be used as evidence against applicant as an admission against interest. See TBMP §704.04 (2nd ed. rev. 2004). In this case, the declarations serve as evidence that applicant’s services have not been rendered in interstate commerce. Opposition No. 91162038 28 no indication that applicant did any work outside of Connecticut. The only evidence regarding applicant’s use of his mark COTTAGE CARE CONSTRUCTION in commerce is his interrogatory responses stating that he performed construction services identified by his mark in “Southern New England.” This uncorroborated statement lacks the specificity necessary to persuade us that applicant’s construction services were rendered in interstate commerce or have any substantial effect on interstate commerce. Oral testimony, even of a single witness, if “sufficiently probative,” may be sufficient to prove applicant’s dates of first use. See Powermatics, Inc. v. Glebe Roofing Products Co., 341 F.2d 127, 144 USPQ 430, 431 (CCPA 1965) (oral testimony used to prove priority); 4U Co. of America, Inc. v. Naas Foods, Inc., 175 USPQ 251, 253 (TTAB 1972) (in summary judgment, affidavit admissible to prove prior and continuous use). While the oral testimony of a single interested witness must necessarily have its weaknesses, we know of nothing in trade mark law which justifies the rejection of such proof if it is sufficiently probative. However, such testimony is obviously strengthened by corrobative documentary evidence, and it should not be characterized by contradictions, inconsistencies, and indefiniteness but should carry with it conviction of its accuracy and applicability. Opposition No. 91162038 29 B. R. Backer Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ 232, 236 (CCPA 1945). Applicant’s interrogatory answers do not have sufficient probative value to establish his first, or continuous, use in commerce. The interrogatory responses are vague because Connecticut is in Southern New England and there is no evidence to define the geographic extent of applicant’s use. By “Southern New England,” he may have been referring to Connecticut because Connecticut is in Southern New England. Applicant has failed to introduce any evidence that he has engaged in any interstate activities to establish his use in commerce. While the interrogatory answers are, no doubt, accurate, they lack the specificity necessary to persuade us that applicant has rendered its services in a type of commerce that may be regulated by Congress. The interrogatory answers have the following deficiencies: 1. There is no evidence that applicant’s services were rendered outside of Connecticut;31 31 Even had we considered applicant’s declarations submitted through his notice of reliance that we excluded, applicant would not have proven that he used his mark in interstate commerce prior to the filing date of his application. We note that only the Alec Orlowski declaration described construction services rendered by applicant outside of Connecticut. Mr. Orlowski states that “[I]n the year 2002, I employed Damian Ranelli to perform professional services, specifically to painting my SECOND HOME on 10 Sugar House in Dover, Vermont.” However, because the applicant’s application was filed on October 22, 2002, the Orlowski declaration also lacks the specificity necessary to establish that applicant used the mark COTTAGE CARE CONSTRUCTION in interstate commerce prior to the filing date of the Opposition No. 91162038 30 2. There is no evidence that applicant advertised outside of Connecticut; and, 3. There is no evidence that any of applicant’s activities affect interstate commerce. In other words, there is no evidence that relates to the extent of applicant’s interstate contacts to establish how applicant’s construction services (that appear to be rendered entirely in Connecticut) satisfy the requirement for use in commerce. See In re U.S. Homes Corporation of Texas, 199 USPQ 698 (TTAB 1978), reconsideration denied, 201 USPQ 602 (TTAB 1978) (registration refused because applicant’s services of planning and laying out residential communities were entirely local in nature). Cf. Bonaventure Associates v. Westin Hotel Company, 218 UPS 537 (TTAB 1983) (extensive national and international advertising to attract consumers to opposer’s development specializing in second homes and featuring restaurant, golf, and other recreational facilities has an affect on interstate commerce and is not purely local in nature). On this record, it appears that applicant’s construction services are entirely local in nature. There is no evidence that any part of applicant’s services or their promotion is performed outside of Connecticut. application. The Orlowski declaration does not tell us when in 2002, applicant rendered services in Vermont. Opposition No. 91162038 31 Because applicant has failed to prove that his mark was, or is, used in commerce, we hold that his application is void ab initio, and therefore registration must be refused.32 False Suggestion Of A Connection Section 2(a) of the Trademark Act of 1946, 15 U.S.C. §1052(a), states, in relevant part, “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it-(a) consists of or comprises … matter which may disparage or falsely suggest a connection with persons living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”33 A plaintiff asserting a claim that its mark falsely suggests a connection with persons living or dead, must prove the following: 1. That the defendant's mark is the same or a close approximation of plaintiff's previously used name or identity; 32 Because we found that applicant has not used its mark in commerce and are refusing registration, we need not decide opposer’s abandonment claim. 33 That corporations as well as individuals are “persons” for purposes of Section 2(a) is well established. Consolidated Natural Gas Company v. CNG Fuel Systems, Ltd., 228 USPQ 752, 754 n.2 (TTAB 1985). Opposition No. 91162038 32 2. That the mark would be recognized as such (i.e., that it points uniquely and unmistakably to that person or institution); 3. That the plaintiff is not connected with the activities performed by the defendant under the mark; and, 4. That the plaintiff's name or identity is of sufficient fame or reputation that when the defendant's mark is used on the goods or services, a connection with the plaintiff would be presumed. In re Sloppy Joe’s International Inc., 43 USPQ2d 1350, 1353 (TTAB 1997); In re Kayser-Roth Corp., 29 USPQ2d 1379, 1385 (TTAB 1993); Buffett v. Chi-Chi’s, Inc., 226 USPQ 428, 429 (TTAB 1985). Opposer contends that its “name is of sufficient fame or reputation that when the mark is used in association with Applicant’s services, a connection with Opposer will be presumed.”34 Specifically, opposer argues that applicant’s use of the mark COTTAGE CARE CONSTRUCTION suggests a false association with opposer for the following reasons: 1. The name COTTAGECARE is unique to opposer; 34 Opposer’s Brief, pp. 49-50. Opposition No. 91162038 33 2. Opposer has invested substantially in its identity and has achieved significant sales and awards based on its identity; and, 3. Applicant had knowledge of opposer’s mark when he filed his application, that he misrepresented his dates of first use to antedate opposer’s registration, and this wrongful conduct demonstrates applicant’s deceptive intent in adopting and using his mark.35 Applicant’s mark COTTAGE CARE CONSTRUCTION is a close approximation of opposer’s corporate name, CottageCare, Inc., and it is clear that there is no connection between opposer and applicant’s construction services. However, applicant used its mark prior to any evidence of opposer’s use of its name (i.e., 1988 - applicant’s date of first use - vs. March, 1989 - opposer’s date of first use).36 Based on this record, opposer has failed to show that it had previously used the CottageCare name. Also, opposer has failed to persuade us that applicant’s mark COTTAGE CARE CONSTRUCTION points uniquely and unmistakably to opposer’s corporate identity and that a 35 Opposer’s Brief, p. 50. 36 Schrader Dep., Exhibit 3; applicant’s responses to Interrogatory Nos. 2, 3, and 6. While Mr. Schrader testified that he founded opposer in 1988 (Schrader Dep., pp. 9, 14), it is not clear from Mr. Schrader’s testimony when opposer actually began using the name publicly. Opposition No. 91162038 34 connection with opposer would be presumed. Applicant’s mark COTTAGE CARE CONSTRUCTION, when used in connection with construction services, is merely descriptive. As shown in the dictionary definitions submitted by opposer, the word “cottage” means a dwelling, “a usually small frame one- family house.” “Care” means “maintenance,” and “construction” means “the process, art, or manner of constructing something; . . . the construction industry .”37 Applicant’s mark COTTAGE CARE CONSTRUCTION directly conveys to consumers that applicant is rendering services in the field of building and repairing houses. In fact, the Trademark Office initially refused to register applicant’s mark on the ground that it is merely descriptive, and therefore applicant amended its application to seek registration under the provisions of Section 2(f) of the Trademark Act of 1946. Accordingly, when the term COTTAGE CARE CONSTRUCTION is used in connection with construction services, the primary significance of that term is its descriptive significance. It cannot, therefore, be said that the only meaning of the term COTTAGE CARE CONSTRUCTION is opposer’s identity. Applicant’s mark by its 37 Opposer’s notice of reliance on Merriam-Webster Online (www.m- w.com). “Construction” can also be defined as “the occupation or industry of building.” Dictionary.com Unabridged (V 1.1) based on the Random House Dictionary Unabridged (2006). The Board may take judicial notice of dictionary definitions. University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Opposition No. 91162038 35 very nature does not falsely suggest a connection with opposer. Cf. The University of Notre Dame v. J.C. Food Imports, 703 F.2d 1372, 217 USPQ 505, 509 (Fed. Cir. 1983) (because Notre Dame has multiple meanings, it is not clear that the public would make the false connection). Moreover, because COTTAGE CARE CONSTRUCTION is merely descriptive and because applicant began using his mark in 1988, it seems obvious to us that applicant adopted and used the mark, albeit only in Connecticut, for its descriptive significance, and that he did so before opposer filed its application for COTTAGECARE (April 3, 1989). Therefore, there is no direct or persuasive evidence that applicant intended to suggest a connection with opposer. In view of the foregoing, we find that applicant’s mark COTTAGE CARE CONSTRUCTION does not create a false suggestion of a connection with opposer. Decision: The opposition is dismissed with respect to the claims of likelihood of confusion and false suggestion of a connection with opposer. The opposition is sustained with respect to the claim that applicant did not use its mark in interstate commerce, and registration to applicant is refused.