Michael E. Jones, M.D., P.C.Download PDFTrademark Trial and Appeal BoardFeb 7, 202087547510 (T.T.A.B. Feb. 7, 2020) Copy Citation Mailed: February 7, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re Michael E. Jones, M.D., P.C. _____ Serial No. 87547510 _____ Aparna (Anantharaman) Peters, Esq. for Michael E. Jones, M.D., P.C. Joanna Han, Trademark Examining Attorney, Law Office 126, Andrew Lawrence, Managing Attorney. _____ Before Mermelstein, Shaw and Adlin, Administrative Trademark Judges. Opinion by Adlin, Administrative Trademark Judge: Applicant Michael E. Jones, M.D., P.C. seeks registration of the mark shown below (with PLASTIC SURGEONS disclaimed) for cosmetics; non-medicated skin care preparations, in International Class 3; This Opinion is Not a Precedent of the TTAB Serial No. 87547510 2 medicated skin care preparations, namely, medicated cream, lotion, lightener, and cleanser, in International Class 5; and surgery; cosmetic surgery services; cosmetic and plastic surgery; plastic surgery services; liposuction and surgical body shaping services; providing a website featuring information about cosmetic and plastic surgery, in International Class 44.1 The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the following two marks registered by different owners that use of Applicant’s mark in connection with Applicant’s goods and services is likely to cause confusion: for liquid soaps for hands, face and body, perfumery; cosmetics and hygienic preparations, namely, non-medicated preparations all for the care of skin, in International Class 3;2 and 1 Application Serial No. 87547510, filed July 28, 2017 under Section 1(a) of the Trademark Act, alleging: first use anywhere on January 1, 2012 for all classes of goods and services; first use in commerce on the same date for the Class 44 services; and first use in commerce on January 1, 2016 for the goods in Classes 3 and 5. The application includes this description of the mark: “the mark consists of LEXINGTON PLASTIC SURGEONS in black, the design of a silhouette of a woman in profile holding her face appearing in turquoise with light blue streaks beneath the silhouette, over a gray oval, and two Roman columns in blue and white.” 2 Registration No. 4326383, issued April 30, 2013 (the “’383 Registration”); Section 71 Affidavit accepted, Section 15 Affidavit acknowledged. The registration includes this description of the mark: “The mark consists of the term ‘LEXINGTON’ in white letters, ‘LEX’ shown above the letters ‘ING’ shown above the letters ‘TON’, all within a blue square, with a white and red striped square coupled thereto and to the right thereof.” Serial No. 87547510 3 LEXINGTON MEDICAL CENTER (standard characters, MEDICAL CENTER disclaimed) for medical and surgical services, in International Class 44.3 After the refusal became final, Applicant appealed and filed its Appeal Brief, following which the Examining Attorney requested and was granted a remand to introduce additional evidence. Applicant then filed its Supplemental Appeal Brief, with additional “evidence.” The appeal is now fully briefed. I. Third-Party References Submitted with Applicant’s Supplemental Appeal Brief The Examining Attorney objects to some of the new “evidence” which Applicant included for the first time in its Supplemental Appeal Brief, specifically, Applicant’s mere reference to “three third-party registrations and common law use of the term ‘LEXINGTON.’” 16 TTABVUE 5. The Examining Attorney points out that despite Applicant’s claims to the contrary, neither the referenced third-party registrations themselves, nor evidence of the alleged common law uses (such as website printouts) were ever introduced into the record of this proceeding, prior to or after Applicant’s appeal. While objections to mere references in a brief are not necessary, the Examining Attorney’s point is well taken. In fact, mere references to registered or unregistered marks in a brief, without supporting evidence (such as copies of the registrations themselves or documentary or testimonial evidence of common law use) are no different than mere attorney argument and not probative. Cai v. Diamond Hong, Inc., 3 Registration No. 3129217, issued August 15, 2006 under Section 2(f) (the “’217 Registration”); renewed. Serial No. 87547510 4 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) ("Attorney argument is no substitute for evidence.") (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)); see also In re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006 (TTAB 2014) (finding that there was no proof to support the statements in the record by counsel). In any event, because we cannot determine from the mere registration numbers and trade names alone which goods and services are offered under the referenced marks and names, even if we considered the registration numbers and trade names, they would have minimal probative value. See In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1405 n.17 (TTAB 2018) (“[T]he list does not include enough information to be probative. The list includes only the serial number, registration number, mark, and status (live or dead) of the applications or registrations. Because the goods are not listed, we do not know whether the listed [applications or] registrations are relevant.”); see also Edom Labs. Inc. v. Licher, 102 USPQ2d 1546, 1550 (TTAB 2012). By contrast, we have considered the evidence attached to Applicant’s Supplemental Appeal Brief, and discussed in the Examining Attorney’s Appeal Brief, specifically the Declaration of Michael E. Jones, M.D. and the printouts from Registrants’ websites. In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1103 n.7 (TTAB 2018) (considering evidence submitted with an applicant’s appeal brief when the examining attorney did not object and discussed it in his brief). Serial No. 87547510 5 II. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the probative evidence of record bearing on the likelihood of confusion. 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); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each du Pont factor about which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See 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.”). A. The Goods and Services, Channels of Trade and Classes of Consumers Before comparing Applicant’s identified goods and services to those in the cited registrations, we should point out that Applicant’s arguments about the goods and services misapprehend the applicable law. Specifically, Applicant focuses on the goods and services Registrants actually offer in the marketplace, and their actual channels of trade and consumers. While those considerations are typically critical in infringement cases, they are of little relevance here. Indeed, when the issue is registration, as opposed to use, we are constrained to focus on the goods and services as they are identified in the involved application and Serial No. 87547510 6 cited registrations, without regard to Applicant’s or Registrants’ actual use of the marks. See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (“It is well established that the Board may not read limitations into an unrestricted registration or application.”) (quoting SquirtCo, 216 USPQ at 940). It was proper, however, for the Board to focus on the application and registrations rather than on real-world conditions, because “the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application … regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.” Even assuming there is no overlap between Stone Lion's and Lion's current customers, the Board correctly declined to look beyond the application and registered marks at issue. An application with “no restriction on trade channels” cannot be “narrowed by testimony that the applicant's use is, in fact, restricted to a particular class of purchasers.” … Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Houston Comp. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (unrestricted and broad identifications are presumed to encompass all goods of the type described).4 4 To the extent that Applicant has cited or introduced evidence suggesting that the mark in the ’383 Registration is not currently in use for skincare or cosmetic products, that is irrelevant. If Applicant believed that the cited mark is not in use for these goods, its remedy was to petition to cancel the Registration, in whole or in part. In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997) (“Dixie’s argument that DELTA is not actually used in connection with restaurant services amounts to a thinly-veiled collateral attack on the validity of the registration … the present ex parte proceeding is not the proper forum for such a challenge.”); Cosmetically Yours, Inc. v. Clairol Inc., 424 F.2d 1385, 165 USPQ 515, 517 (CCPA 1970) (“in the absence of a counterclaim for cancellation under section Serial No. 87547510 7 The same principles apply to Applicant’s arguments about relevant consumers’ sophistication and care and the conditions of sale: Stone Lion effectively asks this court to disregard the broad scope of services recited in its application, and to instead rely on the parties’ current investment practices. This would be improper because the services recited in the application determine the scope of the post-grant benefit of registration. “[R]egistration provides the registrant with prima facie evidence of … the registrant's ‘exclusive right’ to use the mark on or in connection with the goods and services specified in the certificate of registration.” U.S. Search LLC v. U.S. Search.com Inc., 300 F.3d 517, 524 [63 USPQ2d 2013] (4th Cir. 2002) (emphasis added); see also 15 U.S.C. § 1115(a) (the registration is prima facie evidence of the registrant’s exclusive right to use the mark “in connection with the goods or services specified in the registration”) …. It would make little sense for the Board to consider only the parties’ current activities when the intent-to-use application, not current use, determines the scope of this post-grant benefit. Parties that choose to recite services in their trademark application that exceed their actual services will be held to the broader scope of the application. See Octocom Sys., 918 F.2d at 943 (stating that a broad application “is not narrowed by testimony that the applicant’s use is, in fact, restricted”) … the Board properly considered all potential investors for the recited services, including ordinary consumers seeking to invest in services with no minimum investment requirement. Although the services recited in the application also encompass sophisticated investors, Board precedent requires the decision to be based “on the least sophisticated potential purchasers.” Stone Lion, 110 USPQ2d at 1162-63 (some citations omitted). We thus consider the involved application and cited registrations to cover all goods and services of the type 14 of the Act (15 U.S.C. 1064), it is not open to an applicant to prove abandonment of the opposer’s registered mark; and appellant’s argument (upon which it now stakes its appeal) that opposer no longer uses the registered mark ‘Come Alive’ must be disregarded.”). Serial No. 87547510 8 identified, sold to all usual purchasers for those goods and services, and through all usual channels of trade. We may not consider any argument that Applicant’s or Registrants’ actual practices are in fact different. With this in mind, we now turn to the specific goods and services. 1. Class 3 Goods The cited mark LEXINGTON & Design ( ) is registered for “liquid soaps for hands, face and body, perfumery; cosmetics and hygienic preparations, namely, non- medicated preparations all for the care of skin.” Obviously, Registrant’s “cosmetics … namely, non-medicated preparations all for the care of skin” are identical to Applicant’s “cosmetics,” and Registrant’s “hygienic preparations, namely non- medicated preparations all for the care of the skin” are identical to Applicant’s “non- medicated skin care preparations.” Moreover, because the goods are identical, we must presume that the channels of trade and classes of purchasers are as well. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); Am. Lebanese Syrian Associated Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011). The identity of these goods and their overlapping channels of trade and classes of purchasers not only weigh heavily in favor of finding a likelihood of confusion, but also reduce the degree of similarity between the marks necessary to find a likelihood Serial No. 87547510 9 of confusion. In re Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 94 USPQ2d at 1260; In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010). 2. Class 5 Goods The Examining Attorney also cited the ’383 Registration for “liquid soaps for hands, face and body, perfumery; cosmetics and hygienic preparations, namely, non- medicated preparations all for the care of skin” against Applicant’s Class 5 goods, “medicated skin care preparations, namely, medicated cream, lotion, lightener, and cleanser.” Although Applicant argues that these goods are “completely different,” the evidence is to the contrary. In fact, the Examining Attorney has established that medicated skin care preparations and non-medicated skin care preparations are commonly offered under the same marks. For example, Aveeno and Eucerin offer medicated and non- medicated skin care preparations: January 29, 2019 Office Action TSDR 29, 31-32, 34. The marks GOLD BOND and EQUATE are used for medicated and non-medicated lotion: Serial No. 87547510 10 Serial No. 87547510 11 Id. at 7-8, 35-36. The Examining Attorney also introduced similar additional evidence showing that medicated and non-medicated skin care products are offered under the same marks. Id. at 9-11, 24-28, 37-38 (printouts from “dermae.com,” “epionce.com,” “laroche-posay.us” and “cetaphil.com”). This evidence establishes that medicated and non-medicated skin care products, including lotions, cleansers and other preparations, are offered under the same marks and on the same websites to the same consumers.5 These factors therefore weigh in 5 Applicant’s argument that the channels of trade and classes of consumers differ because it offers its goods on a “medical practice website,” while Registrant offers its goods on “a high- Serial No. 87547510 12 favor of finding a likelihood of confusion between Applicant’s Class 5 goods and the goods in the cited registration. 3. Class 44 Services The mark in the cited ’217 Registration, LEXINGTON MEDICAL CENTER, is registered for “medical and surgical services,” which are identical to Applicant’s “surgery,” and encompass Applicant’s “cosmetic surgery services; cosmetic and plastic surgery; plastic surgery services; liposuction and surgical body shaping services.” Thus, like the Class 3 goods, these services are identical or legally identical, and as with the Class 3 goods, the identity of these services and their presumed overlapping channels of trade and classes of purchasers not only weigh heavily in favor of finding a likelihood of confusion, but also reduce the degree of similarity between the marks necessary to find a likelihood of confusion.6 end international fashion design company” website is misplaced. Neither Applicant’s nor Registrant’s identification of goods includes any limitation regarding channels of trade or classes of consumers, and therefore we must presume that the goods travel in all channels of trade normal for skin care products. Stone Lion, 110 USPQ2d at 1162 (“An application with ‘no restriction on trade channels’ cannot be ‘narrowed by testimony that the applicant’s use is, in fact, restricted to a particular class of purchasers.’”); Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (goods presumed to be “offered in all channels of trade which would be normal therefor”); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). 6 Applicant’s argument that confusion is unlikely because Registrant is a large South Carolina “medical complex” while Applicant is a plastic surgery center with nine surgeons located on Lexington Avenue in New York is not well taken. The cited registration and involved application are both geographically unrestricted. In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 n.4 (TTAB 1987) (territorial separation of the use of the cited registered mark from the applicant is irrelevant to determining likelihood of confusion in a geographically unrestricted application); Peopleware Sys., Inc. v. Peopleware, Inc., 226 USPQ 320, 321 (TTAB 1985) (while opposer and applicant may currently be geographically separated in their uses, this is irrelevant where applicant seeks a nationwide unrestricted registration). Serial No. 87547510 13 B. The Marks We consider the marks “in their entireties as to appearance, sound, connotation and 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) (quoting du Pont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d, 777 Fed.Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Here, the marks are similar because they all include the word LEXINGTON. Applicant argues, however, that the designs in its mark and the ’383 Registration, and the words PLASTIC SURGEONS in its mark and MEDICAL CENTER in the ’217 Registration, are sufficiently distinguishing that confusion is unlikely. We disagree. 1. The ’383 Registration Obviously, Applicant’s design and Registrant’s design are completely different. Thus, consumers comparing the marks side-by-side would be able to distinguish them. However, the test is not whether the marks are distinguishable when considered side-by-side. Rather, the test is whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods and services offered under the marks is likely to result. San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991). Here, the marks Serial No. 87547510 14 are similar enough that when used on identical and closely related goods, consumer confusion is likely to result. Indeed, the marks share the word LEXINGTON, which is the dominant portion of both. It is dominant because it comes first. 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”); see also, Palm Bay Imports Inc., 73 USPQ2d at 1692; Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). Furthermore, while both marks include designs, the word LEXINGTON is entitled to greater weight in assessing the likelihood of confusion. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012); In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987) (holding that “if one of the marks comprises both a word and a design, then the word is normally accorded greater weight because it would be used by purchasers to request the goods or services” and “because applicant’s mark shares with registrant’s mark that element responsible for creating its overall commercial impression, the marks are confusingly similar”). We recognize that the term is written on three separate lines in the cited mark, but because LEXINGTON is a known word, and the letter strings written on each line (LEX, ING and TON) make more sense if read together than apart, this manner of display is not particularly significant here. There is no evidence to indicate that LEXINGTON lacks strength in connection with the relevant goods or services. Serial No. 87547510 15 While we have not ignored the disclaimed term PLASTIC SURGEONS, it is obviously highly descriptive if not generic for Applicant’s goods and services and therefore also entitled to less weight in our analysis. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)). In short, while we have considered the marks in their entireties, they share and are dominated by the identical term LEXINGTON, which is how consumers will research and request the goods. This makes the marks more similar than dissimilar in overall commercial impression. This factor also weighs slightly in favor of finding a likelihood of confusion. 2. The ’217 Registration Because it does not include a design component, the LEXINGTON MEDICAL CENTER mark is more similar to Applicant’s mark than the mark in the ’383 Registration. Like Applicant’s mark, its dominant element is the word LEXINGTON, both because it comes first and because MEDICAL CENTER is highly descriptive of, if not generic for Registrant’s services. Furthermore, as indicated above, the word LEXINGTON is more important in our analysis than the design in Applicant’s mark. In short, because they share and begin with the term LEXINGTON, Applicant’s mark and the mark in the ’217 Registration look and sound somewhat similar. More importantly, they convey very similar meanings and have quite similar commercial impressions. Indeed, LEXINGTON MEDICAL CENTER conveys a Serial No. 87547510 16 hospital, clinic or other health care facility, and therefore consumers familiar with the Lexington Medical Center could very well believe that LEXINGTON PLASTIC SURGEONS refers to a group of plastic surgeons who practice or operate at the LEXINGTON MEDICAL CENTER. Thus, rather than distinguishing Applicant’s mark, the term PLASTIC SURGEONS could exacerbate confusion. This factor weighs in favor of finding a likelihood of confusion. C. Consumer Sophistication and Purchaser Care Applicant’s argument that the relevant consumers are sophisticated and will exercise care in purchasing is unsupported by any evidence. Furthermore, the record is to the contrary with respect to skin care preparations. For example, as the Walmart website listings depicted above reveal, bottles of medicated and non-medicated EQUATE lotions are sold for less than $5.00. This factor is neutral with respect to Applicant’s goods in Classes 3 and 5. However, with respect to Applicant’s Class 44 surgical services, we accept Applicant’s argument that the relevant consumers will make their purchasing decisions carefully, and that this weighs against a finding of likelihood of confusion. Nevertheless, this factor is outweighed by the legal identity of Applicant’s and Registrant’s services, and the close similarity of their marks, including the possibility that consumers will believe that LEXINGTON PLASTIC SURGEONS are affiliated with LEXINGTON MEDICAL CENTER, or that the services offered under LEXINGTON PLASTIC SURGEONS are endorsed or offered by LEXINGTON MEDICAL CENTER. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986); Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 Serial No. 87547510 17 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970); see also, HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweighed sophisticated purchasers, careful purchasing decision, and expensive goods). D. Lack of Actual Confusion Applicant’s argument that there has been no actual confusion is not well taken, because there is no evidence supporting it. That is, although Dr. Jones declared that Applicant has been offering plastic surgery and cosmetics services since 2005,7 there is no evidence regarding the extent of Applicant’s or either Registrant’s use of LEXINGTON marks, such as advertising practices, the number of procedures performed or products sold. Therefore, we cannot gauge whether or the extent to which there has been a meaningful opportunity for confusion to occur. See Nina Ricci S.A.R.L. v. E.T.F. Enters. Inc., 889 F.2d 1070, 12 USPQ2d 1901, 1903 (Fed. Cir. 1989) (“The absence of any showing of actual confusion is of very little, if any, probative value here because (1) no evidence was presented as to the extent of ETF’s use of the VITTORIO RICCI mark on the merchandise in question in prior years ….”); In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984). But see In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1164 (Fed. Cir. 2019) (in which the applicant introduced declaration testimony concerning the lack of actual confusion “for a 7 Dr. Jones merely testifies that Applicant “has been in operation since October 2005,” without indicating whether Applicant has used any marks including LEXINGTON since that time. 13 TTABVUE 28 (Jones Dec. ¶ 3). As indicated, the involved application asserts first use of the involved mark in commerce for surgery services on January 1, 2012, and first use for skin care preparations on January 1, 2016. Serial No. 87547510 18 particularly long period of time – over 40 years – in which the two businesses operated in the same geographic market – southern California – without any evidence of actual confusion”). This factor is neutral. III. Conclusion Applicant’s mark is similar to both Registrants’ marks, the goods and services are identical or closely related, and the channels of trade and classes of consumers overlap. While we assume that surgical patients will exercise care in purchasing, they will encounter Applicant’s and Registrant’s surgical services in the same channels of trade under similar marks. As a result, their care in purchasing will not be enough to prevent confusion. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed based on both cited registrations. Copy with citationCopy as parenthetical citation