The USPTO refused to register the mark INTEGRATED PERFORMANCE CARE SYSTEMS for, inter alia, chiropractic services [CARE SYSTEMS disclaimed], finding a likelihood of confusion with the registered word+design mark shown below, for chiropractic services. Applicant Donald Dudley appealed. Did Dudley do right? In re Donald Dudley, Serial No. 87655327 (October 4, 2019) [not precedential] (Opinion by Judge Cynthia C. Lynch).

Because the services are in part identical, the Board must presume that they travel in the same channels of trade to the same classes of purchasers. These factors weighed “heavily” in favor of a finding of likelihood of confusion.

As to the cited mark, the Board found the top portion to be “dominant for a number of reasons.” It is the first part of the mark and is more likely to be impressed upon the minds of consumers and remembered. “The pictorial element occupies a prominent central place in the mark, and consists of a male silhouette reminiscent of Leonardo da Vinci’s Vitruvian Man.” That element looks like the letter “I” and thus the top portion could be viewed as “VIP,” standing for VICTORY INTEGRATED PERFORMANCE. “So, VIP in this mark has a laudatory connotation about special treatment from the services, as well as the initialism connotation.”

Although the literal portion of a mark is normally accorded greater weight, here “the bold lettering VIP, incorporated with the prominent design features, forms the part of the mark most likely to be remembered by consumers and used to call for the services.” “In fact, some consumers could perceive the less prominent INTEGRATED PERFORMANCE, or VICTORY INTEGRATED PERFORMANCE, as a marketing slogan or tagline, rather than the primary identifier of source.

The Board also found the wording INTEGRATED PERFORMANCE that appears in both marks to be suggestive of the services: it suggests “the balance and unified functioning that patients may achieve through the services.”

The Board concluded that, considering the marks in their entireties, “the differences between the marks is dispositive of no likelihood of confusion, even though the services, channels of trade, and classes of consumers overlap.”

And so the Board reversed the refusal to register.

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Text Copyright John L. Welch 2019.