Monday, October 05, 2009

Trade Channels and Purchasers Too Different, TTAB Reverses 2(d) Refusal of "DOOR TO DOC IN 31 MINUTES"

Finding the channels of trade and classes of purchasers to be "distinct," the Board reversed a Section 2(d) refusal to register DOOR TO DOC IN 31 MINUTES for "hospital services, namely, emergency services and acute care services," finding it not likely to cause confusion with the registered marks DOOR TO DOC and 60 TO 0 DOOR TO DOC [in standard character and design forms] for "consultation services in the field of health care, namely, providing assistance to health care facilities by improving the flow and overall care quality of patients in emergency room and ambulatory care facilities." For completeness, the Board also went on to find that the marks "are not similar." In re Gilbert Hospital, LLC, Serial No. 77070847 (September 22, 2009) [not precedential].

The Board found "highly persuasive" Applicant's arguments that its services are marketed to the general public (potential patients), and that these persons are not potential customers for the health care facility consultation services recited in the registrations. The Examining Attorney did not fare so well: "The Examining Attorney strains to posit a circumstance where the trade channels might overlap or intersect, but he fails in this effort."

[W]e have no evidence that a potential patient might somehow mistakenly contact the registrant instead of applicant in attempting to access health care services. Even if such a mistake were to occur, we question whether the mistake would be the result of trademark confusion. Such a mistake would not necessarily indicate that the individual believed that either applicant or registrant was the source of both types of services. Therefore, we reject this argument.

For the sake of completeness, the Board also considered the marks. The DOOR TO DOC registration resides on the Supplemental Register, and its "apparent weakness" and the additional element IN 31 MINUTES serve to distinguish it from the applied-for mark. The other registered marks are even further distinguished by the addition of 60 to 0.

And so the Board reversed the Section 2(d) refusal.

TTABlog comment: If applicant's customers comprise the general public, wouldn't they include the health care professionals who purchases registrant's services? Isn't there some overlap in customers?

Text Copyright John L. Welch 2009.


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