Tuesday, November 11, 2014

TTAB Test: Are "RightChoice" and "ClearChoice" Confusingly Similar for Dental Implant Services?

Clear Choice Holdings opposed an application to register the mark RightChoice, in standard character form, for "dental implant services," claiming a likelihood of confusion with the registered marks CLEARCHOICE  DENTAL IMPLANTS, CLEARCHOICE DENTAL IMPLANT CENTER, and ClearChoice and Star Design, also for dental implant services [DENTAL IMPLANTS and DENTAL IMPLANT CENTER disclaimed]. Are the marks too close? How do you think this came out? ClearChoice Holdings, LLC v. Dale D. Goldschlag, D.D.S., P.C., Opposition No. 91191371 (October 17, 2014) [not precedential].

Of course, when the services are identical, the Board must presume that the channels of trade and the classes of consumers are the same. Moreover, in such a case, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

The Board found the dominant element of Opposer's marks to be the term "Clear Choice." The shooting star in opposer's design mark, if anything, "highlights the term 'Clear Choice' by dotting the letter 'I' and, thus, indicating that by selecting opposer, the 'Clear Choice' in dental implant services, the consumer is making the correct choice." [Huh? The shooting star design does all that? - ed.].

In appearance and sound, the Board concluded, RightChoice and ClearChoice or CLEARCHOICE are similar: "each prefaces the word 'Choice' with a one-syllable word that describes the selection or 'choice' that the customer should make as wise (i.e., a 'Clear' choice or the 'Right' choice.)" In short, the words "Right" and "Clear" have the same meaning and provide the same commercial impression, especially when used with "Choice."

The Board concluded that the similarities between the marks outweigh their differences, and that the marks are similar in their entireties with regard to appearance, sound, connotation, and commercial impression.

Although applicant provided no evidence regarding purchaser care or sophistication, even assuming a high degree of care, the Board found this du Pont factor to be outweighed by the others. Moreover, even careful consumers may be confused when similar marks are used in connection with identical services.

Balancing the relevant du Pont factors, the Board found confusion likely and it sustained the opposition.

Read comments and post your comment here

TTABlog comment: Well, how did you do? Note this prior Board decision in the REAL CHOICE versus CLEARCHOICE case [TTABlogged here].

Text Copyright John L. Welch 2014.


At 9:15 AM, Anonymous Anonymous said...

I do not think that they are confusingly similar. CHOICE is an extremely weak term for any goods and services, dental included:


Don't forget that the consumer tends to focus on the first part of the mark!!

I would reverse the judgment of the TTAB.


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