Crowded Field of Third-Party Uses Yields Reversal of Section 2(d) Refusal of EVOLVE LIFE SYSTEMS for Personal Development Counseling

In a "very close case," the Board reversed a Section 2(d) refusal of the mark EVOLVE LIFE SYSTEMS for counseling services in the field of personal development [SYSTEMS disclaimed], finding confusion unlikely with the registered mark for EVOLVED LYFE for legally identical services [LIFE disclaimed] - i.e., life coaching. The Board found the differences between the marks to be "minute," but the evidence of third-party use and registration of EVOLVE LIFE-formative marks led the Board to its ultimate conclusion. In re Craig S. Copeland, Serial No. 90042595 (August 15, 2022) [not precedential] (Opinion by Judge David K. Heasley).

Dictionary definitions and third-party evidence indicated that the formative EVOLVE LIFE is "both conceptually and commercially weak in the field of life coaching." The phrase suggests a desired result of life coaching services: "to help one evolve for the better, progressively improving the trajectory of one's life."

The suggestive meaning of "evolve life" was reinforced by 35 third-party websites referred to by Applicant Copeland during prosecution. Copeland also submitted eight use-based third-party registrations for EVOLVE-formative marks, five of which the Board found relevant. These registrations bear on the issue of conceptual weakness, not on commercial weakness. Because they were few in number, and because the marks contained significantly different wording, the Board gave them little weight standing alone, but coupled with the dictionary definitions, they helped confirm the suggestive meaning of "evolve[d]."

Along with the third-party usage, the third-party registrations "may be considered to demonstrate the meaning of a word ... [has] a well-known and commonly understood meaning ... and that the word has been chosen to convey that meaning."

The examining attorney distinguished some of the third-party uses because of additional wording or differing services, and he contended that the remaining uses fell short of the "ubiquitous" or "considerable" amount of use found to be probative in Juice Generation or Jack Wolfskin. The Board disagreed.

Applicant has demonstrated multiple third-party variations on the term EVOLVE[D] LIFE in connection with life coaching services. Admittedly, this number is less than the five hundred-plus third-party examples in Broadway Chicken, 38 USPQ2d at 1560-61. But the number is comparable to Juice Generation, 115 USPQ2d at 1674 (PEACE and LOVE weak terms when used in connection with juice and restaurant services due to 26 third-party registrations and uses of marks containing the words “peace” and “love” used for similar goods and services).

The Board concluded that the cited mark falls on the lower end of the "spectrum from very strong to very weak."

Turning to the marks, the Board noted that the "minute differences" in the marks "might not suffice to distinguish marks of average conceptual strength." But in light of the weakness of marks containing EVOLVE in combination with LIFE, the Board found that "purchasers are able to distinguish among various [similar] marks by looking at other elements of the marks." Quoting Knight Textile v. Jones Inc., 75 USPQ2d at 1316.

The Board concluded that confusion is unlikely, and so it reversed the refusal. The Board noted that this decision would not preclude it "from reaching a different result, on a different record, in an opposition or cancellation proceeding."

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Text Copyright John L. Welch 2022.