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`THIS OPINION IS NOT A
`PRECEDENT OF THE TTAB
`
`Mailed: August 27, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Titus Sports Academy, LLC
`_____
`
`Serial No. 88494655
`_____
`
`
`Gail Podolsky of Carlton Fields, PA,
`for Titus Sports Academy, LLC.
`
`Adetayo J. Adeyiga, Trademark Examining Attorney, Law Office 114,
`Laurie Kaufman, Managing Attorney.
`
`_____
`
`
`Before Zervas, Taylor and Lykos,
`Administrative Trademark Judges.
`
`
`Opinion by Taylor, Administrative Trademark Judge:
`
`Titus Sports Academy, LLC (“Applicant”) seeks registration on the Principal
`
`Register of the composite mark SPRY SENIOR FITNESS and design (shown below)
`
`for, as last amended:
`
`
`
`Providing information regarding physical fitness and
`physical fitness consultation directed towards older adults
`to help them make physical fitness, strength, conditioning,
`and exercise improvement in their daily living; consulting
`
`

`

`Serial No. 88494655
`
`services in the fields of physical fitness; counseling services
`in the fields of physical fitness, exercise, and injury
`prevention, namely, educational programs for improving
`quality of life through exercise physiology, nutrition, and
`pre-habilitation, and human performance, namely,
`educational programs to promote enhanced states of
`physical well-being and prevent physical deterioration;
`human performance assessment
`services, namely,
`assessment of physical fitness, strength, conditioning, and
`injury prevention; all of which do not include fitness
`training services in the field of yoga, in International Class
`41; and
`
`Human performance assessment services, namely,
`assessment of exercise physiology and physical fitness for
`medical purposes, in International Class 44.1
`
`At the request of the Examining Attorney, Applicant disclaimed the wording
`
`“SENIOR FITNESS.” The application also includes the following description: “The
`
`mark consists of an animated individual standing on top of two crescent moons with
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`the word ‘spry’ immediately to the right and ‘senior fitness’ below the ‘ry’ in ‘spry.’”
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`Color is not claimed as a feature of the mark.
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`The Trademark Examining Attorney finally refused registration of Applicant’s
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`mark for both classes of services on the ground that Applicant’s mark so resembles
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`the standard character marks SPRY2 and SPRY YOGA3 (Yoga disclaimed), both for
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`“Providing fitness training services in the field of [y]oga,” in International Class 41,
`
`
`1 Application Serial No. 88494655 was filed on June 29, 2019, based upon Applicant’s claim
`of first use of the mark anywhere and in commerce in connection with the Class 41 services
`since at least as early as April 21, 2009 under Section 1(a) of the Trademark Act, 15 U.S.C.
`§ 1051(a), and on Applicant’s claim of a bona fide intention to use the mark in commerce in
`connection with the Class 44 services under Section 1(b) of the Trademark Act, 15 U.S.C.
`§ 1051(b).
`
`2 Registration No. 5816589 was issued on June 30, 2019.
`
`3 Registration No. 5520151 was issued on July 17, 2018.
`
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`Serial No. 88494655
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`as to be likely to cause confusion, mistake, or to deceive under Trademark Action
`
`Section 2(d), 15 U.S.C. § 1052(d). The Examining Attorney also issued a requirement
`
`for an identification of services in both Classes 41 and 44, which, in part, is not
`
`indefinite, overly broad, and does not exceed the scope of the original or last
`
`acceptable identification. See Trademark Rules 2.32(a)(6), 2.71(a), 37 C.F.R.
`
`§§2.32(a)(6), 2.71(a). See also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
`
`§§805, 1402.06 et seq., 1402.07 (July 2021).
`
`When the refusals were made final, Applicant appealed and requested
`
`reconsideration. After
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`the Examining Attorney denied
`
`the request
`
`for
`
`reconsideration, the appeal was resumed. We affirm the refusals to register.4
`
`I. Evidentiary Issue
`
`Before proceeding to the merits of the refusals, we address an evidentiary matter.
`
`The Examining Attorney has objected to new evidence attached to Applicant’s appeal
`
`brief that she asserts is “substantially duplicative” of evidence previously submitted.
`
`She argues that “[b]ecause applicant’s potentially new evidence was untimely
`
`submitted during an appeal … the Board [should] disregard it.”5 Trademark Rule
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`2.142(d), 37 C.F.R. § 2.142(d), provides that “[t]he record in the application should be
`
`complete prior to the filing of an appeal. The Trademark Trial and Appeal Board will
`
`
`4 Page references herein to the application record refer to the online database of the USPTO’s
`Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents
`contained in the TSDR database are to the downloadable .pdf versions of the documents in
`the USPTO TSDR Case Viewer. References to the briefs on appeal refer to the Board’s
`TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and
`after this designation are the page references, if applicable.
`
`5 11 TTABVUE 5.
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`Serial No. 88494655
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`ordinarily not consider additional evidence filed with the Board by the appellant or
`
`by the examiner after the appeal is filed.” Therefore, Applicant’s objection is
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`sustained to the extent that the evidence attached to Applicant’s appeal brief that
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`was not previously submitted and hence not timely, will be given no further
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`consideration.6 See In re Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014) (rejecting
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`untimely evidence attached to a brief and noting that parties should avoid the
`
`practice because even if such evidence already is in the record, attaching it to the
`
`brief increases the burden on the Board to review and attempt to locate the same
`
`evidence in the prosecution record).
`
`II.
`
`Identification Requirement
`
`We first address the Examining Attorney’s requirement respecting Applicant’s
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`identification of services, because the likelihood of confusion analysis requires
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`consideration of the identified services. A review of the prosecution history on this
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`issue is helpful.
`
`A. Background
`
`Applicant’s original recitation of services reads as follows:
`
`Providing information regarding physical fitness and
`physical fitness consultation directed towards older adults
`to help them make physical fitness, strength, conditioning,
`and exercise improvement in their daily living; consulting
`services in the fields of fitness, exercise, injury prevention,
`
`6 While the Board ordinarily will take judicial notice of dictionary definitions, including online
`dictionaries that exist in printed format or have regular fixed editions, see In re Cordua Rests.
`LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed.
`Cir. 2016), the definition of the word “spry” attached to Applicant’s brief was previously
`submitted as Exhibit B to Applicant’s March 30, 2020 Response at TSDR 31. As such, it is
`duplicative of evidence already of record and need not be made of record twice.
`
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`Serial No. 88494655
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`and human performance; counseling services in the fields
`of
`fitness, exercise,
`injury prevention, and human
`performance; human performance assessment services, in
`International Class 41.
`
`This identification was deemed indefinite, and the Examining Attorney advised
`
`Applicant that it could clarify or limit the identification by inserting clarifying
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`language or deleting items to result in a more definite identification, but could not
`
`expand the identification beyond the services originally itemized in the application
`
`or as acceptably amended.7 Applicant’s March 20, 2020 Response proposed the
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`following amendment:
`
`Providing information regarding physical fitness and
`physical fitness consultation directed towards older adults
`to help them make physical fitness, strength, conditioning,
`and exercise improvement in their daily living; consulting
`services in the fields of physical fitness, disease prevention,
`habilitation, exercise physiology, nutrition, physical
`energy preservation, and well-being; fitness exercise,
`injury prevention, namely, pre-habilitation; and human
`performance, namely strength and vitality preservation;
`counseling services in the fields of fitness, exercise, injury
`prevention, namely, programs for improving quality of life
`through
`exercise physiology, nutrition, and pre-
`habilitation, and human performance, namely, programs
`to promote enhanced state of physical well-being and
`prevent physical deterioration; human performance
`assessment services, namely assessment of physiology and
`physical fitness, in International Class 41.
`
`The Examining Attorney did not accept the proffered amendment in total, arguing
`
`that some of the services remain indefinite and that portions (as specified below) of
`
`
`7 September 20, 2019 Office Action, TSDR 4.
`
`.
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`Serial No. 88494655
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`the proposed amendment are beyond the scope of the original identification. She
`
`particularly explains:
`
`First, the wording “disease prevention, habilitation,
`exercise
`physiology,
`nutrition,
`physical
`energy
`preservation, and well-being” within the clause “consulting
`services in the fields of physical fitness, disease prevention,
`habilitation, exercise physiology, nutrition, physical
`energy preservation, and well-being” is outside the scope of
`the original identification, as these services were not
`included in the original identification, nor do the services
`provide clarification for any indefinite or broad wording in
`the application as filed. Further, consulting services in the
`fields of “disease prevention, habilitation, exercise
`physiology, nutrition, physical energy preservation, and
`well-being” are indefinite, broad, and/or misclassified, are
`not in class 041, but rather, are likely all in class 044.
`
`Finally, the wording “fitness exercise, injury prevention,
`namely, pre-habilitation; and human performance,
`namely, strength and vitality preservation” is outside the
`scope of the original identification, as providing these
`actual services,
`is distinguishable
`from providing
`consulting in the field of these areas, which is what
`applicant has identified in the application as filed.
`Additionally,
`the wording
`“pre-habilitation”
`is
`misclassified, is not in class 041, but rather, is in class 044.
`
`The Examining reiterated her advisory that any amended identification could not
`
`exceed the scope of the original or as acceptably amended, and noted that the
`
`identification now falls in multiple classes.
`
`With its request for reconsideration, filed September 29, 2019, Applicant proposed
`
`the following amendment to the identification of services:
`
`“Providing information regarding physical fitness and
`physical fitness consultation directed towards older adults
`to help them make physical fitness, strength, conditioning,
`and exercise improvement in their daily living; consulting
`services in the fields of physical fitness; counseling services
`in the fields of physical fitness, exercise, and injury
`
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`Serial No. 88494655
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`prevention, namely, educational programs for improving
`quality of life through exercise physiology, nutrition, and
`pre-habilitation, and human performance, namely,
`educational programs to promote enhanced states of
`physical well-being and prevent physical deterioration;
`human performance assessment
`services, namely,
`assessment of physical fitness, strength, conditioning, and
`injury prevention; physical fitness for sports training
`and injury prevention purposes; all of which do not
`include fitness training services in the field of yoga” in
`International Class 041; and
`
`“Human performance assessment services, namely,
`assessment of exercise physiology and physical fitness for
`food nutrition consultation,
`medical purposes,
`physical rehabilitation services; consulting services
`in the field of health, all of which do not include
`fitness training services in the field of yoga” in
`International Class 044.
`
`The Examining Attorney found the proposed amendment unacceptable with
`
`respect to the above-highlighted portions, maintaining that those services have
`
`broadened the scope of the identification as originally filed or as previously amended.
`
`B. Analysis
`
`An application must specify the goods or services on or in connection with which
`
`an applicant uses or has a bona fide intent to use the mark in commerce. 15 U.S.C.
`
`§§ 1051(a)(2), 1051(b)(2) and 1053. Trademark Rule 2.32(a)(6), 37 C.F.R. § 2.32(a)(6),
`
`requires that the application specify the “particular” goods or services. To specify the
`
`particular services means to identify them in an explicit manner. TMEP § 1402.01.
`
`The identification of goods and/or services must be specific, definite, clear, accurate,
`
`and concise. See In re Societe Generale des Eaux Minerales de Vittel S.A., 1 USPQ2d
`
`1296 (TTAB 1986), rev’d on other grounds, 824 F.2d 957, 3 USPQ2d 1450 (Fed. Cir.
`
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`Serial No. 88494655
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`1987). An identification of services in an application may be amended to clarify or
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`limit, but not to broaden, the identified services. Trademark Rule 2.71(a), 37 C.F.R.
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`§ 2.71(a). Put another way, an applicant may clarify or limit the identification by
`
`inserting qualifying language or deleting items to result in a more specific
`
`identification; however, an applicant may not substitute different goods and/or
`
`services or add goods and/or services not found or encompassed by those in the
`
`original application or as acceptably amended. See TMEP § 1402.06(a)-(b). Any
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`acceptable changes to the services will further limit the scope, and once services are
`
`deleted, they are not permitted to be reinserted. TMEP § 1402.07(e). To determine
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`whether a proposed amendment is within the scope of the previously-listed
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`identification, we look to the “ordinary meaning of the wording.” TMEP § 1402.07(a).
`
`Applicant argues that its proposed amended identification of services for both
`
`International Classes 41 and 44 do not exceed the scope of the identification, as filed,
`
`because the original identification included “consulting services.”8
`
`We disagree. While the original as well as the partially accepted amendments to
`
`the identification included consulting services, those services were limited by
`
`particular fields, i.e., (physical) fitness, exercise, injury prevention, and human
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`performance. As regards the proposed amendment to the Class 41 services, as aptly
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`noted by the Examining Attorney, the wording “physical fitness for sports training
`
`and injury prevention purposes” exceeds both the scope of the original and the current
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`identification, as providing these actual services is vastly different from providing
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`
`8 9 TTABVUE 8 (Applicant’s appeal brief).
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`Serial No. 88494655
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`information regarding or consulting in the field of these areas, which were the
`
`services identified at filing. Moreover, even if the wording did not exceed the scope of
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`the previous identifications, it is indefinite because it does not specify the nature of
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`the physical fitness services.
`
`With regard to the proposed Class 44 services, we find the wording “food nutrition
`
`consultation, physical rehabilitation services” to improperly broaden the scope of the
`
`original and the current identification, as these services were never identified in the
`
`original application. We further find the proffered “consulting services in the field of
`
`health” to improperly exceed the scope because they was not included in the
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`enumerated fields as set forth in the original (and previously amended)
`
`identifications. Last, while the wording “for medical purposes” clarifies the purpose
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`of the Applicant’s identified “human performance assessment services, namely, the
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`assessment of exercise physiology and physical fitness” we disagree that the wording
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`“which do not include fitness training services in the field of yoga” does not further
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`limit and clarify Applicant’s proffered services. While Applicant’s assessment services
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`ultimately may be for medical purposes, that limitation does not prevent Applicant
`
`from excluding “fitness training services in the field of yoga” from its assessment
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`services.
`
`We thus affirm the identification requirement to the extent discussed and reverse
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`the requirement solely as it pertains to the addition of the wording “which do not
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`include fitness training services in the field of yoga” to the Class 44 services.
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`Serial No. 88494655
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`Therefore, that wording may be added to the clause and we consider the Class 44
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`services to be amended as follows:
`
`Human performance assessment services, namely,
`assessment of exercise physiology and physical fitness for
`medical purposes, which do not include fitness training
`services in the field of yoga.
`
`Accordingly, Applicant’s services as acceptably amended are as follows:
`
`Providing information regarding physical fitness and
`physical fitness consultation directed towards older adults
`to help them make physical fitness, strength, conditioning,
`and exercise improvement in their daily living; consulting
`services in the fields of physical fitness; counseling services
`in the fields of physical fitness, exercise, and injury
`prevention, namely, educational programs for improving
`quality of life through exercise physiology, nutrition, and
`pre-habilitation, and human performance, namely,
`educational programs to promote enhanced states of
`physical well-being and prevent physical deterioration;
`human performance assessment
`services, namely,
`assessment of physical fitness, strength, conditioning, and
`injury prevention; all of which do not include fitness
`training services in the field of yoga, in International Class
`41; and
`
`Human performance assessment services, namely,
`assessment of exercise physiology and physical fitness for
`medical purposes, which do not include fitness training
`services in the field of yoga in International Class 44.
`
`III. Likelihood of Confusion
`
`A. Applicable Law
`
`Section 2(d) of the Trademark Act prohibits registration of a mark that so
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`resembles a registered mark as to be likely, when used on or in connection with the
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`goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
`
`§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
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`Serial No. 88494655
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`an analysis of all probative facts in the record that are relevant to the likelihood of
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`confusion factors set forth in In re E.I. DuPont de Nemours & Co. (DuPont), 476 F.2d
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`1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two
`
`key considerations are the similarities between the marks and the similarities
`
`between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co.,
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`544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant
`
`factors. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed.
`
`Cir. 2019) (Board considers each DuPont factor for which there is evidence and
`
`argument).
`
`Since both of the cited marks cover the same services, for the sake of judicial
`
`economy, we focus our analysis on cited Registration No. 5481392 (’392 Reg.) for the
`
`mark SPRY. If confusion is likely between Applicant’s mark and the mark in the ’392
`
`Reg., there is no need for us to consider the likelihood of confusion with the other
`
`cited mark because it contains an additional word. See, e.g., In re Max Capital Grp.
`
`Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
`
`C. Similarity of the Services, Trade Channels, and Classes of Consumers
`
`We first compare the services. In making our determination regarding the
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`relatedness of the services, we must look to the services as identified in Applicant’s
`
`application and the cited registration. See In re Detroit Athletic Co., 903 F.3d 1296,
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`128 USPQ2d 1047, 1052 (Fed. Cir. 2018); In re Dixie Rests., Inc., 105 F.3d 1405, 41
`
`U.S.P.Q.2d 1531, 1534 (Fed. Cir. 1997); see also Hewlett-Packard Co. v. Packard Press
`
`Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). “This factor considers whether
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`Serial No. 88494655
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`‘the consuming public may perceive [the respective services of the parties] as related
`
`enough to cause confusion about the source or origin of the goods and services.’” In re
`
`St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014). We must
`
`presume that Applicant’s and Registrant’s services encompass all services of the
`
`nature and type identified in the application and registration. See In re Solid State
`
`Design Inc., 125 USPQ2d 1409, 1413-14 (TTAB 2018) (where the goods in an
`
`application or registration are broadly described, they are deemed to encompass all
`
`the goods of the nature and type described therein); In re Hughes Furniture Indus.,
`
`Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
`
`identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
`
`‘residential and commercial furniture.’”); In re Jump Designs LLC, 80 USPQ2d 1370,
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`1374 (TTAB 2006).
`
`Evidence of relatedness may include news articles and/or evidence from computer
`
`databases showing that the relevant services are used together or used by the same
`
`purchasers; advertisements showing that the relevant services are advertised
`
`together or sold by the same manufacturer or dealer; and/or copies of prior use-based
`
`registrations of the same mark for both applicant’s services and the services listed in
`
`the cited registration. See, e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014)
`
`(finding pepper sauce and agave related where evidence showed both were used for
`
`the same purpose in the same recipes and thus consumers were likely to purchase
`
`the products at the same time and in the same stores). The issue is not whether
`
`purchasers would confuse the services, but rather whether there is a likelihood of
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`Serial No. 88494655
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`confusion as to their source. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB
`
`2012); In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984).
`
`The Examining Attorney maintains that “Applicant’s services, namely, various
`
`physical fitness information, consulting, counseling and assessment services for older
`
`adults are highly related to registrant’s yoga services.”9 She has supported her
`
`position with evidence from the websites of Do Yoga With Me, Pies Fitness Yoga
`
`Studio, and Umang’s Wellness Heaven,10 from Hampshire Hills Athletic Haven,
`
`Maximum Fitness, National Fitness Center, Sand & Steel Fitness, and the
`
`Weymouth Club,11 and from Cora Physical Therapy, Holy Cross Health, Morgana,
`
`Ochsner Fitness Center, Texas Family Fitness, and the YMCA,12 which shows that:
`
`(1) the same entity commonly provides services of the types identified by both the
`
`application and cited registration under the same mark; and/or (2) the services are
`
`similar or complementary in terms of purpose or function; and (3) the relevant
`
`services are provided through the same trade channels and used by the same classes
`
`of consumers in the same fields of use.
`
`By way of example, Pie Fitness Yoga offers wellness services, including, holistic
`
`yoga therapy and lifestyle coaching; Umang’s Wellness Haven offers care for senior
`
`citizens through yoga and life coaching; Hampshire Hills Athletic Club offers fitness
`
`assessment and senior fitness, including “forever fit gentle yoga”; Sand and Steel
`
`
`9 11 TTABVUE 13 (The Examining Attorney’s brief).
`
`10 September 20, 2019 Office Action, TSDR 10-26.
`
`11 April 1, 2020 Final Office Action, TSDR 9-58.
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`12 October 14, 2020 denial of Request for Reconsideration, TSDR 5-55.
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`Serial No. 88494655
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`Fitness offers personal training for seniors, including yoga as well as comprehensive
`
`movement screening; the Weymouth Club offers fitness assessment and senior
`
`fitness, including yoga; Morgana offers online personal training for women, including
`
`yoga and consultation of the health benefits of yoga; Ochsner Fitness Center offers
`
`senior fitness programs and classes catering to “the wellness, education and
`
`socialization needs of our members age 65 and older” ( at TSDR 35), including yoga;
`
`and the YMCA offers a number of health and fitness classes, including chair yoga.
`
`Based on this evidence, we find that Applicant’s and Registrant’s services are
`
`related in that they are often offered together by the same entity under the same
`
`mark.
`
`Applicant’s contention that the services are dissimilar because it has “specifically
`
`excluded yoga services from its application,” Applicant’s br. p. 4,13 is unavailing. It is
`
`not necessary that the services be identical or even competitive in order to find that
`
`they are related for purposes of our likelihood of confusion analysis. Confusion may
`
`occur if the respective services are “related in some manner and/or if the
`
`circumstances surrounding their marketing are such that they could give rise to the
`
`mistaken belief that [the goods or services] emanate from the same source.” Coach
`
`Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
`
`Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
`
`Notwithstanding Applicant’s exclusion of “fitness training services in the field of
`
`yoga,” those services are related and complementary in that third parties often
`
`
`13 9 TTABVUE 5.
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`Serial No. 88494655
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`provide information, counseling and assessments services featuring fitness services
`
`in the form of yoga.
`
`Furthermore, because there are no limitations as to channels of trade or classes
`
`of purchasers in Applicant’s or Registrant’s recitation of services, we must presume
`
`that Applicant’s and Registrant’s services move in all usual channels of trade for
`
`these services including, as demonstrated by the record, in recreation centers, fitness
`
`studios and online, and are offered to, and purchased by, the usual classes of
`
`purchasers of the services which, in this case, include ordinary senior consumers
`
`seeking physical fitness education, information or counseling which the record shows
`
`to include the practice of yoga. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
`
`1992). We accordingly find the channels of trade and classes of consumers to overlap.
`
`D. The Marks
`
`We now consider the DuPont likelihood of confusion factor of the similarity or
`
`dissimilarity of the marks in their entireties in terms of sound, appearance, meaning
`
`and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
`
`Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In
`
`comparing the marks, we are mindful that “[t]he proper test is not a side-by-side
`
`comparison of the marks, but instead ‘whether the marks are sufficiently similar in
`
`terms of their commercial impression’ such that persons who encounter the marks
`
`would be likely to assume a connection between the parties.” Coach Servs., 101
`
`USPQ2d at 1721 (citation omitted); see also San Fernando Electric Mfg. Co. v. JFD
`
`Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests.
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`- 15 -
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`

`

`Serial No. 88494655
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`Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353
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`(Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who
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`retains a general rather than specific impression of the marks. L’Oreal S.A. v.
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`Marcon, 102 USPQ2d at 1438; Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207
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`USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
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`(TTAB 1975). In this case the average consumer includes older individuals interested
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`in physical fitness.
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`Because the similarity or dissimilarity of the marks is determined based on the
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`marks in their entireties, our analysis cannot be predicated on dissecting the marks
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`into their various components; that is, the decision must be based on the entire
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`marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
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`749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
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`1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
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`dissected and considered piecemeal; rather, it must be considered as a whole in
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`determining likelihood of confusion.”). On the other hand, different features may be
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`analyzed to determine whether the marks are similar. Price Candy Co. v. Gold Medal
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`Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In fact, there is nothing
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`improper in stating that, for rational reasons, more or less weight has been given to
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`a particular feature of a mark, provided the ultimate conclusion rests on a
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`consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at
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`751.
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`- 16 -
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`

`

`Serial No. 88494655
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`We compare Applicant’s composite mark
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` to the cited standard
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`character mark SPRY. Applicant maintains that the marks are distinct in appearance
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`and commercial impression, specifically arguing that it “has added [to its mark] a
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`substantial and visually distinct design and the phrase ‘senior fitness.’” Applicant’s
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`brief, p. 4.14
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`We disagree that the additional elements in Applicant’s mark are distinguishing,
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`and find, initially, that the word SPRY is the most prominent portion of Applicant’s
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`mark. The wording SENIOR FITNESS is merely descriptive of the subject matter of
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`Applicant’s consultation, information, educational and assessment services directed
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`to older adults and has been disclaimed. As such, this term is entitled to less weight
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`in our determination. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944
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`(Fed. Cir. 2004) (descriptive terms are properly given less weight). We note, too, that
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`the wording SENIOR FITNESS is in much smaller type than the word SPRY. SPRY
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`hence is the dominant term in Applicant’s mark.
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`Further, where both words and a design comprise a mark, the words are normally
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`accorded greater weight because they are more likely to make an impression upon
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`purchasers, would be remembered by them, and would be used by them to call for the
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`services. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
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`(citing CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in
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`a composite mark comprising a design and words, the verbal portion of the mark is
`
`
`14 9 TTABVUE 5.
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`- 17 -
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`

`

`Serial No. 88494655
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`the one most likely to indicate the origin of the goods [or services] to which it is
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`affixed”)).
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`While in this case the design is clearly visible, unlike in the cases relied upon by
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`Applicant,15 it is of a comparable size to the literal SPRY element of Applicant’s mark,
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`and the “crescent moons,” even if perceived as such as opposed to arbitrary swooshes,
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`merely underscore the “animated individual” element which evokes a perception of a
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`fanciful figure doing calisthenics. As such, the design element enhances the
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`commercial impression evoked by the literal element SPRY SENIOR FITNESS in
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`Applicant’s mark, rather than creating a separate and distinct commercial
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`impression. Indeed, as Applicant states in its brief:
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`Appellant’s unique composite design mark features an
`animated individual presented upon two crescent moon
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`
`15 To support its position that the design element dominates its mark Applicant principally
`relies on the decisions issued in In re Covalinski, 113 USPQ2d 1166 (TTAB 2014), Parfums
`de Coeur Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007), Steve’s Ice Cream v. Steve’s Famous
`Hot Dogs, 3 USPQ2d 1477 (TTAB 1987), and Ferro Corp. v. Ronco Labs., Inc., 356 F.2d 122,
`148 USPQ 497 (CCPA 1966). This reliance is misplaced. In Covalinski, the wording in the
`applicant’s mark was merged together with the design, with some of the letters being so small
`as to be almost illegible. In Parfums de Coeur, the larger design was considered grotesque
`and arresting such that it would catch the viewers eye before the wording. In Ferro Corp.,
`the applicant’s Ferro-Gard and design mark was found not similar to the opposer’s