RealCore Realty LLC

Trademark Trial and Appeal Board

Aug 13, 2012

No. 85028127 (T.T.A.B. Aug. 13, 2012)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: August 13, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RealCore Realty LLC
________

Serial No. 85028127
_______

Daniel J. Noblitt of The Noblitt Group PLLC for RealCore
Realty LLC.

Brian Pino, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Zervas, Cataldo and Mermelstein,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, RealCore Realty LLC, filed an application
to register in standard characters on the Principal
Register the mark HOUSING ANGELS (HOUSING disclaimed) for
the following services, as amended:
Real estate acquisition services; Real estate
investment services; Real estate investment
services in the nature of purchasing and selling
of real estate for others; Real estate
procurement for others; Real estate services to
stop foreclosure, namely, mortgage debt
management
Ser. No. 85028127
2
in International Class 36.1
The trademark 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, as used in
connection with its services, so resembles the mark
PROPERTY ANGELS (PROPERTY disclaimed) previously registered
in standard characters on the Principal Register for “real
estate agent” in International Class 36,2 as to be likely to
cause confusion.
In addition, the examining attorney refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), on the ground that applicant’s mark
merely describes the recited services.
When the refusals were made final, applicant appealed.
Applicant and the examining attorney filed briefs on the
issue under appeal, including applicant’s reply brief.
Mere Descriptiveness
We first consider the refusal to register under
Section 2(e)(1) based upon the examining attorney’s
assertion that applicant’s mark, HOUSING ANGELS, merely
describes a function, feature or characteristic of the

1 Application Serial No. 85028127 was filed on May 5, 2010, based
upon applicant’s assertion of March 2010 as a date of first use
and first use of the mark in commerce.
2 Registration No. 3391823 issued on March 4, 2008.

Ser. No. 85028127
3
services recited in the involved application.
In support of the refusal to register, the examining
attorney made of record dictionary definitions of HOUSING
and ANGEL. According to these definitions, HOUSING is
defined as “accommodation: houses and other buildings
where people live, considered collectively;” and ANGEL may
be defined as “heavenly being: in some religions, a divine
being who acts as a messenger of God;” “kind person:
somebody who is kind or beautiful;” or “financial backer:
somebody who provides financial support for an enterprise,
e.g., a theatrical venture (informal).”3
The examining attorney further made of record
advertisements and articles retrieved from Internet
webpages displaying the term ANGEL used in connection with
investors, including real estate investors. The following
examples are illustrative:

Housing Angels
Investor Program
Click here if you are an Investor and want to be
an Angel.
Click here to view available properties that need
an Angel Investor. …
Year 1
Angel buys home for $120,000 and offers it as a
leaseback through the housing Angels program.

3 Encarta® World English Dictionary [North American Edition]
2009.
Ser. No. 85028127
4
Former owner will put $3,000 into a broker trust
account with a lease agreement with option to
purchase.
Former owner will pay $1,320 in rent per month.
If the former owner wants to repurchase in the
first year they will pay the Angel $132,000. …
(housingangels.com);4

Angel Real Estate Investor Syndicates
If you are a commercial real estate developer
seeking the participation of angel real estate
investor syndicates in your project, then you
should at least consider the syndication options
and benefits the Rainmaker Marketing Corporation
approach can provide. Most angel real estate
investors and syndicates focus on the post-
construction fractional ownership opportunities
and thereby limit investor returns to generally
less than a pathetic 10% per annum, but Rainmaker
Marketing Corporation’s proprietary commercial
real estate due diligence documentation
requirements allow developers to attract
financing in the pre-construction phase of the
real estate development program. …
(multifamilypropertyloans.com);

Real Estate Angel Investor
Are you interested in finding an angel investor
for real estate?
Finding an angel investor is critical to the
development of your real estate company. …
(gobignetwork.com); and

Angel Investors aka Housing Angels
There have been recent talks about Angel
Investors buying properties and allowing the
previous owners to lease back from the investor.
It’s funny that this is now “new” since it was in
the paper last week, but the fact is that it has
been around for years.
So what is an Angel Investor. Housing angels
come in to buy homes from distressed home owners

4 Applicant’s website.
Ser. No. 85028127
5
and allow the sellers to stay in the house at
market rent. They purchase the properties
through the short sale process. …
(arizonarealestatehome.com).

Finally, the examining attorney made of record copies of
two third-party registrations used in connection with
services similar to those recited in the involved
application in which the terms ANGELS or ANGEL INVESTORS
are disclaimed in marks on the Principal Register. These
registrations are:
Registration No. 3780127 on the Principal Register for
the mark SEEDSTEP ANGELS with ANGELS disclaimed for
managing angel capital groups, namely, management
of angel capital investments; financial services,
namely, providing capital investment consultation
and managing angel, seed or venture capital funds
and financing for others; providing access to
capital directly or by referrals, namely,
providing financing opportunities to emerging and
start-up companies; providing best practices
financial and investment management advice to
angel investors;

and
Registration No. 3943520 on the Principal Register for
the mark ANGEL INVESTORS ANONYMOUS with ANGEL INVESTORS
disclaimed for, inter alia,
Capital funding and investment services, namely,
equity capital investment and early stage
financing to companies by accredited investors.

Applicant, for its part, argues that the examining
attorney has failed to make a prima facie case that HOUSING
Ser. No. 85028127
6
ANGELS merely describes its services, mainly because the
“word ‘angel’ is so well recognized by the public and
associated with helping others, that the appellant’s
HOUSING ANGELS mark is a classic example of a double
entendre.”5 In support of its position, applicant has made
of record advertisements and articles from Internet
webpages from the following organizations:
House Angels
House Angels is a Christian charity – our mission
is to help make a difference to less fortunate
neighbors in need by repairing their homes.
Typically, these are homeowners who are elderly
or are single parents, although, we will assist
any no- or low-income folks.
(houseangles.org);

Shelter Angel Network (SAN)
The Shelter Angel Network (SAN) connects private
donors (“shelter angels”) with people in need of
safe housing through customized blogs on our
website. Our software allows people in need to
create self-managed WordPress blogs to share
their personal housing stories using text and
photos, and to solicit private donations using
PayPal or ChipIn! Donation buttons.
(reshelter.org);

Donate Your Car For Charity
Helping you give Car Donations is Our Specialty!
Become a Car Angel, Donate a Car, Boat, Plane,
House or RV!
Receive a Tax Deduction while Avoiding Hassles
that come from a Private Sale!
(carangel.com); and

5 Applicant’s brief, p. 8-9.
Ser. No. 85028127
7
Donate Your Boat
Boat Angel
Please give us your boat even if it is not in
running condition. We make all the arrangements
to pick-up your boat, yacht or vessel at no cost
to you.
You can receive the full fair market value as a
lawful IRS tax deduction for your boat – Donate a
boat today.
(boatangel.org).

Applicant argues that this evidence

demonstrates that the HouseAngels website is
directed towards helping improve and repair homes
for people. Similarly, Shelter Angels is
directed towards connecting people in need of
safe housing with private donors. Likewise,
CarAngel and BoatAngel are associated with donor
organizations. Therefore, it cannot be said with
the level of certainty suggested by the office
action that the term ‘angels’ has a primary
significance that is descriptive in relation to
the appellant’s services.6

It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, feature or
characteristic thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the

6 Id. at 9.
Ser. No. 85028127
8
properties or functions of the goods and/or services in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
significant attribute or feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
In the instant case, the evidence made of record by
the examining attorney supports a finding that, as applied
to applicant’s services, the term HOUSING ANGELS would
immediately describe, without conjecture or speculation, a
significant characteristic or feature of such services,
namely, that they facilitate purchase and acquisition of
HOUSING from distressed owners by ANGEL investors who
purchase such housing for investment purposes and allow
their distressed owners to avoid foreclosure. As noted
above, applicant’s services include real estate
acquisition, investment, procurement and services to avoid
foreclosure by means of mortgage debt management. Thus, as
defined, HOUSING ANGELS merely describes a central
Ser. No. 85028127
9
function, feature or characteristic of the recited
services.
In addition, the Internet articles and advertisements
submitted by the examining attorney establish that various
entities use the term ANGEL or ANGELS to describe
individuals or groups that invest in underfunded ventures
including, inter alia, real estate or HOUSING to provide
funding in return for a profit. As such, this evidence
supports a finding that consumers are accustomed to
encountering the term HOUSING ANGELS as used to describe
the recited services. Material obtained from the Internet
is acceptable in ex parte proceedings as evidence of
potential public exposure to a term. See In re Fitch IBCA,
Inc., 64 USPQ2d 1058 (TTAB 2002).
Finally, the third-party registrations submitted by
the examining attorney demonstrate that the terms ANGELS
and ANGEL INVESTORS are subject to a disclaimer requirement
in the context of two marks applied to various investment
services. It is settled that each case must be decided on
its own set of facts, and we are not privy to the facts
involved with these registrations. See In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).
See also In re Best Software Inc., 58 USPQ2d 1314 (TTAB
2001). Nonetheless, these third-party registrations tend
Ser. No. 85028127
10
to provide further support for the examining attorney’s
position that HOUSING ANGELS is merely descriptive in the
context of applicant’s services. In particular, we note
that Registration No. 3780127 uses the terms “angel capital
groups” and “angel investors” in its recitation of services
to describe the services provided under the mark SEEDSTEP
ANGELS. Use of the term “angel” in this recitation of
investment-related services suggests that the term is
merely descriptive thereof.
We are not persuaded by applicant’s argument that
because the term ANGELS in applicant’s mark has other
meanings unrelated or less directly related to its
services, HOUSING ANGELS is not merely descriptive of its
services. As noted above, whether a term is merely
descriptive is determined not in the abstract, but in
relation to the goods and/or services for which
registration is sought. In this case, the examining
attorney has introduced evidence that while the term ANGELS
may have multiple meanings, it has a particular meaning in
relation to applicant’s services, namely, an individual or
group that invests in underfunded HOUSING and other
ventures for profit. That a term may have other meanings
in different contexts is not controlling. In re Bright-
Crest, supra.
Ser. No. 85028127
11
Moreover, even if we were to find that HOUSING ANGELS
has not previously been used in connection with applicant’s
real estate services, consumers are likely to view the
designation as merely describing such services. The above
evidence demonstrates that the combination of the
descriptive terms HOUSING and ANGELS merely describes
applicant’s services, and that consumers have been exposed
to descriptive use of the individual terms comprising
applicant’s mark in connection with related services.
Thus, even if applicant is the first and/or at present the
only user of the term HOUSING ANGELS in connection with
such services, it is well settled that such use does not
entitle applicant to the registration thereof where, as
here, the term has been shown to immediately convey only a
merely descriptive significance in the context of such
services. See, e.g., In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018, 1020 (TTAB 1983); and In
re Mark A. Gould, M.D., 173 USPQ 243, 245 (TTAB 1972).
Accordingly, we find that applicant’s mark is merely
descriptive as contemplated by Section 2(e)(1) of the Act.
Likelihood of Confusion
We next consider the examining attorney’s refusal to
register under Section 2(d). Our determination of the
issue of likelihood of confusion is based on an analysis of
Ser. No. 85028127
12
all of the probative facts in evidence that are relevant to
the factors set forth in In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See
also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 27 (CCPA
1976). See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).
The Marks
We first consider the similarity of applicant’s
HOUSING ANGELS mark and registrant’s PROPERTY ANGELS mark.
In determining the similarity or dissimilarity of marks, we
must consider the marks in their entireties in terms of
sound, appearance, meaning and commercial impression. See
du Pont, supra. See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
their entireties that confusion as to the source of the
Ser. No. 85028127
13
goods and services offered under the respective marks is
likely to result.
In this case, applicant’s HOUSING ANGELS mark and
registrant’s PROPERTY ANGELS mark are similar in sight and
sound to the extent that they share the word ANGELS as the
second word of a two-word mark.
Because the similarity or dissimilarity of the marks
is determined based on the marks in their entireties, the
analysis cannot be predicated on dissecting the marks into
their various components; that is, the decision must be
based on the entire marks, not just part of the marks. In
re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985); see also Franklin Mint Corp. V. Master
Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It
is axiomatic that a mark should not be dissected and
considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”). On the
other hand, different features may be analyzed to determine
whether the marks are similar. Price Candy Company v. Gold
Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268
(CCPA 1955). In fact, 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 a consideration of the marks
Ser. No. 85028127
14
in their entireties. In re National Data Corp., 224 USPQ
at 751.
We turn now to the meaning of the marks. As discussed
above, we have found the combination of terms comprising
applicant’s mark, i.e., HOUSING ANGELS, to be merely
descriptive of real estate investment, procurement,
acquisition, and related services to avoid foreclosure
through debt management. In addition, the examining
attorney made of record a definition of PROPERTY.
According to that definition, PROPERTY is defined as “owned
land or real estate: a piece of land or real estate that
is owned by somebody.”7 Thus, the descriptive and
disclaimed term PROPERTY merely describes a feature or
characteristic of registrant’s services. As a result, both
marks consist of the term ANGELS preceded by the related
terms HOUSING and PROPERTY, which merely describe the
recited real estate services. Therefore, we find that the
marks are more similar than dissimilar in appearance and
sound.
We observe that, based upon our finding above that
HOUSING ANGELS merely describes applicant’s services, the
PROPERTY ANGELS mark in the cited registration would appear

7 Encarta® World English Dictionary [North American Edition]
2009.
Ser. No. 85028127
15
to be relatively weak as used in connection with
registrant’s “real estate agent” services. Nonetheless,
Section 7(b) of the Trademark Act provides that a
certificate of registration on the Principal Register shall
be prima facie evidence of the validity of the
registration, of the registrant’s ownership of the mark and
of the registrant’s exclusive right to use the mark in
connection with the goods or services identified in the
certificate. Thus, the validity of the cited registration
is not subject to collateral attack in this ex parte
proceeding. In re Dixie Restaurants, 41 USPQ2d at 1534;
and In re Peebles Inc., 23 USPQ2d 1795, 1797 n.5 (TTAB
1992).
Moreover, even suggestive or weak marks are entitled
to protection from the use of a very similar mark for
legally identical services. See In re Chica Inc., 84
USPQ2d 1845, 1850 (TTAB 2007), quoting In re Colonial
Stores, 216 USPQ 793, 795 (TTAB 1982):
if the word CORAZON, and its English
translation, was considered to be
highly suggestive of jewelry, it
nonetheless is entitled to protection
from the use of a very similar mark on
jewelry products. “[E]ven weak marks
are entitled to protection against
registration of similar marks,
especially identical ones, for related
goods and services.”

Ser. No. 85028127
16
In this case, because of the relationship between the real
estate-related services, we find that the scope of
protection of the cited PROPERTY ANGELS mark extends to
applicant’s highly similar HOUSING ANGELS mark.
In addition, the mark HOUSING ANGELS merely describes
an angel investor who purchases houses or accommodations
from distressed owners for profit while PROPERTY ANGELS
very similarly suggests that registrant provides
opportunities for angel investors in connection with its
real estate agency services. As a result, we find that the
marks are highly similar in meaning or connotation and,
when viewed in their entireties, the similarities between
HOUSING ANGELS and PROPERTY ANGELS outweigh the
dissimilarities. It is settled that under actual marketing
conditions, consumers do not necessarily have the luxury of
making side-by-side comparisons between marks, and must
rely upon their imperfect recollections. Dassler KG v.
Roller Derby Skate Corporation, 206 USPQ 255 (TTAB 1980).
Accordingly, this du Pont factor favors a finding of
likelihood of confusion.
The Services and Their Channels of Trade
Turning next to our consideration of the recited
services, we must determine whether consumers are likely to
mistakenly believe that they emanate from a common source.
Ser. No. 85028127
17
It is not necessary that the services at issue be similar
or competitive, or even that they move in the same channels
of trade, to support a holding of likelihood of confusion.
It is sufficient instead that the respective services are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the services are
such that they would or could be encountered by the same
persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief
that they originate from the same producer. See In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
As identified, applicant’s services are real estate
acquisition, real estate procurement, real estate
investment, and mortgage debt management. Registrant’s
services are real estate agent services. Thus, on the face
of their respective recitations, applicant’s services would
appear to be related to those of registrant to the extent
that both involve, inter alia, the purchase and sale of
real estate. In other words, real estate agents facilitate
applicant’s broadly identified real estate acquisition and
procurement.
The examining attorney further has submitted evidence
from educational and commercial internet websites offering
Ser. No. 85028127
18
real estate agency and real estate acquisition and
procurement services.8 In addition, the examining attorney
has submitted evidence from educational and commercial
internet websites offering both real estate agency and real
estate investment services.9 The foregoing evidence
suggests that at least the real estate acquisition,
procurement, and investment services offered by applicant
are related to the real estate agent services offered by
registrant, and that these services are offered by the same
entities such that consumers would expect a single entity
to provide both services.10
In view of the foregoing, and applying the applicable
law to the evidence of record, we find that applicant’s
real estate procurement, acquisition and investment
services are related to registrant’s real estate agent
services, and this du Pont factor also favors a finding of
likelihood of confusion.

8 Examples include: straightarrowrealty.com; tampa4u.com;
clarkhawaii.com; agentpreview.com; and floridamoves.com.
9 Examples include: RealEstateAgencies.net; and bls.gov.
10 We are aware that applicant’s identification also includes
mortgage debt management services directed toward avoiding
foreclosure. However, it is not necessary for the examining
attorney to prove likelihood of confusion with respect to each of
the services identified in applicant’s single-class application;
if there is likelihood of confusion with respect to any of
applicant’s identified services, the refusal of registration must
be affirmed. See Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Ser. No. 85028127
19
Furthermore, because there are no restrictions in
either applicant’s or registrant’s identification services
as to the channels of trade in which the services may be
encountered, or type or class of customer to which the
services are marketed, both applicant’s and registrant’s
services must be presumed to move in all normal channels of
trade and be available to all classes of potential
consumers, including those of each other’s services. See
In re Elbaum, supra. Furthermore, the record in this case
suggests that the services of both applicant and registrant
are directed toward the general adult population that
purchases real estate. In consequence thereof, this du
Pont factor further favors a finding of likelihood of
confusion.
Care of Relevant Purchasers
Applicant contends that because the services involved
“relate to extremely expensive purchases,”11 purchasers of
the involved services are careful and thus less likely to
experience confusion. Even assuming arguendo that
purchases of applicant’s and registrant’s services would
involve a careful and deliberate decision, this does not
mean that the purchasers are immune from confusion as to

11 Applicant’s brief, p. 19.

Ser. No. 85028127
20
the origin of the respective services, especially when, as
we view the present case, the similarity of the marks and
the similarity between the services outweigh any
sophisticated purchasing decision. See HRL Associates,
Inc. v. Weiss Associates, Inc., 12 USPQ2d 1819 (TTAB 1989),
aff’d, Weiss Associates, Inc. v. HRL Associates, Inc., 902
F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) [similarities of
goods and marks outweigh sophisticated purchasers, careful
purchasing decision, and expensive goods]. See also In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50
(Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112
(CCPA 1970) [“Human memories even of discriminating
purchasers...are not infallible.”]. This du Pont factor
is, at best, neutral or somewhat favors a finding of
likelihood of confusion.
Summary
We have considered all of the arguments and evidence
submitted by applicant and the examining attorney in coming
to our determination herein, including any arguments and
evidence not specifically addressed in this decision. In
light of the foregoing, we find that a likelihood of
confusion exists between the applied-for mark and the mark
in the cited registration.
Ser. No. 85028127
21
Decision
The refusals of registration under Section 2(e)(1) and
Section 2(d) of the Trademark Act are affirmed.