TTAB Reverses Section 2(d) Refusal of OCTAVE for Mental Health Services Due to Ambiguity in Cited Registration

The Board overturned a refusal to register the mark OCTAVE for "outpatient mental health services delivered by licensed counselors," finding that the USPTO's evidence failed to support the refusal. The Office deemed applicant's mark likely to cause confusion with the identical mark registered for software and SAAS for use as a medical patient care management platform in the fields of neurology and autoimmune diseases and disorders. The Board, however, found the registration's identification of goods and services to be too ambiguous to be understood. In re Evolve Health Group, Inc., Serial No. 88030138 (August 29, 2024) [not precedential] (Opinion by Judge Marc Thurmon).

The Board observed that "it is not entirely clear how the services identified in the cited Registration are provided. Nor is it clear who the intended consumers are for those services."

Applicant’s consumers are persons seeking mental health counseling, for themselves or for others (e.g., a parent seeking care for their minor child). Registrant’s consumers are harder to define, but from the identification it appears the customers of the Registrant are medical offices or medical groups that provide services to patients. But do regular patients of these providers also see Registrant’s OCTAVE mark?

The Examining Attorney asserted that the goods and services are related “because there is an overlap in the fields of healthcare, specifically mental health and neurology.” But there was no evidence as to how the registered mark is used. When there is ambiguity in an identification, the Board may turn to extrinsic evidence to better understand the nature of the identified services.

The Board considered that registrant's mark may be used internally with software by medical professionals, or with a type of patient portal software that may or may not display the mark to the patient.

Without at least some patient exposure to the cited OCTAVE mark, there can be no likelihood of confusion as to this group of consumers. The Examining Attorney apparently assumed the cited mark is used in a manner that exposes patients to that mark, but there is no basis in the record for making such a finding.

The Board discussed several other possible scenarios for use of the cite mark, but they "raised many more questions than answers given the record in this appeal." In sum, there was insufficient evidence to show that the goods and services are sufficiently related, or travel in the same trade channels, so as to lead to consumer confusion. Therefore, the Board concluded that the second and third DuPont factors weighed "heavily" against a likelihood of confusion.

The Board next found that relevant consumers of applicant's services would exercise greater care than in a typical purchasing scenario.

Although the identity of the marks at issue weighed "heavily" in favor of a finding of likely confusion, it was "clear the evidence of record does not support the refusal."

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TTABlogger comment: When the marks are identical, the applicant obviously starts behind the octave-ball. But kudos to the Board for sorting this out.

Text Copyright John L. Welch 2024.