Because the involved services are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. And because there are no limitations in the application or pleaded registration as to channels of trade or classes of customers, the Board presumed that the services are offered in the usual channels to the normal classes of customers.
As to the marks, the Board not surprisingly focused on the terms REAL CHOICE and CLEARCHOICE. It found the terms similar in appearance and sound, noting that each term prefaces the word "choice" with a one-syllable term featuring a long "e" vowel sound framed by consonants. And it noted that "real" is an anagram of "clear," minus the "c."
The Board also found the connotations of "real" and "clear" to be related, since "real" is listed as one of many synonyms for "clear." And the marks make similar commercial impressions in the context of the identified services.
Consequently the first duPont factor favored opposer.
The Board recognized that dental implant services may be expensive, but neither the application nor the pleaded registration limit the services to any certain price. There was no evidence that the purchasers are sophisticated, but the Board has previously noted that even ordinary consumers exercise greater care when making healthcare decisions. But then, careful consumers are not immune to source confusion when similar marks are used for identical services. The Board concluded that the similarities between the marks outweighed any sophisticated purchasing decision, and so this factor was deemed neutral.
Opposer claimed that its mark is famous, but its proofs fell "woefully short." There was no evidence of actual confusion, but also little opportunity for same since the parties overlap in only three markets.
Opposer's survey evidence suffered from numerous flaws: opposer failed to follow an established format to measure likelihood of confusion, the sample size was small, and the choice of the survey universe was wrong. [Opposer's expert stated that the survey was designed to test initial interest confusion, but the Board noted that the CAFC has not embraced that theory.] The Board gave the survey results no weight.
Finally, opposer claimed that applicant adopted its mark in bad faith, but the Board found no intent to deceive consumers, even if applicant did intend to copy opposer's logo and website (which it changed after being contacted by opposer).
Balancing the duPont factors, the Board found confusion likely and it sustained the opposition.
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Text Copyright John L. Welch 2013.
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