TTAB Reverses Section 2(d) Refusal of "LendingOne & Design" Over LENDERS ONE Due to Differences in Mortgage Lending Services

Two Section 2(d) refusals reversed in one week? I kid you not. The Board overturned a refusal to register the mark shown below, for various mortgage lending services, finding confusion unlikely with the registered mark LENDERS ONE for "cooperative mortgage lending services" [LENDERS disclaimed]. The Board found the marks to be highly similar, but the second, third and fourth DuPont factors favored the applicant, and the cited mark was somewhat weak. In re LendingOne, LLC, Serial No. 97627670 (August 20, 2024) [not precedential] (Opinion by Judge Angela Lykos).

 

Applicant identified its services as: "Origination of single and one-to-four family rental, fix-and-flip, and small-balance multifamily business-purpose mortgage loans and non-bank commercial real estate mortgage loans related to the private money lending business secured by non-owner occupied residential investment, multifamily, or commercial real property, specifically excluding mortgage lending services to mortgage lenders in connection with business services at negotiated prices."

The Board began with an assessment of the strength of the cited mark. It reviewed a number of registrations for and uses of marks including the words "lend" or "lending" but none were as close to the registered mark as applicant's mark. Nonetheless, the Board concluded that "the cited mark’s strength is somewhat limited by the first word LENDERS which has been shown to be conceptually weak by third-party registration evidence and has been disclaimed."

Turning to registrant's services, the Board looked to extrinsic evidence to discern the meaning of "cooperative mortgage lending services."

This evidence clarifies that Registrant does not provide mortgage loans to real estate investors. Nor does Registrant even provide mortgage lending services. Rather, Registrant is a cooperative comprised of independent mortgage bankers that provides bundled support services to its members in order to compete against large mortgage lenders.

Applicant’s specimen of use states that the focus of its services is the provision of loans to real estate investors, such as “Fix & Flip Loans,” “Multifamily Bridge Loans,” and “Rental Loans.” 

The Board found it "obvious" that applicant’s and registrant’s services are not legally identical. Moreover, there was no evidence (i.e., third-party registrations or excerpts from third-party websites)  that these services may emanate from a single source.

The Board next found that, "although the classes of consumers differ, both Applicant’s and Registrant’s consumers are likely to exercise great care in purchasing their respective services."

The Board concluded that the first factor was outweighed by the second, third and fourth factors, and "slightly by the sixth factor." "In other words, although the marks are highly similar, this is outweighed by the findings that the services are unrelated, the channels of trade and classes of purchasers do not overlap, and consumers of both Applicant’s and Registrant’s services will exercise more than ordinary care in their purchasing decisions."

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TTABlogger comment: The rate of affirmance of Section 2(d) refusals is running at about 93% so far this year.

Text Copyright John L. Welch 2024.