TTABlog Test: Is “THE CHIRO PLACE” Confusable With “THE CHIRO SPOT” For Chiropractic Services? – Trademark


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The USPTO refused to register the proposed mark THE
CHIRO PLACE
, in standard form (“CHIRO”
disclaimed), finding confusion likely with the registered
mark THE CHIRO SPOT (“CHIRO”
disclaimed), both for chiropractic services. Applicant argued that
the term “CHIRO” is “diluted,” pointing to
several third-party websites using the term and to twelve existing
registrations for marks containing the term “CHIRO” for
chiropractic and related services. How do you think this came
out? 
In re The Chiro Place, Inc.
, Serial No. 90119392
(September 20, 2022) [not precedential] (Opinion by Judge Cheryl S.
Goodman).

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Since the services are identical, the Board presumed that they
are offered in the same channels of trade to the same classes of
consumers. Turning to the marks, the Board first considered the
strength of the cited mark.

As to inherent strength, applicant submitted a dictionary
definition of “chiro” (chiropractic) and cited 12
third-party registrations for marks that include CHIRO, four of
which disclaimed CHIRO and two of which existed on the Supplemental
Register. Website evidence showed use of CHIRO by third parties in
connection with chiropractic services.

The Board noted that the third-party registrations “show
the Office’s treatment of CHIRO as a descriptive or generic
term allowing for registration of CHIRO marks if there are
sufficient differences.” There was no evidence of third-party
use or registration relating to the term SPOT, but the Board found
SPOT to be “a highly suggestive reference to the place,
location, or area where Registrant’s services are
performed.” Consequently, THE CHIRO SPOT “as a whole is
highly suggestive [and] entitled to a narrower scope of
protection.”

Nevertheless, the Board observed, even weak marks are entitled
to protection against confusingly similar marks.

Turning to the marks themselves, the Board found PLACE and SPOT
to be the dominant portion of the respective marks. Although these
terms are not similar in appearance and sound, they appear in the
same position in the two marks and are “highly similar in
connotation.” Therefore the marks are similar in commercial
impression. In sum, the Board found the marks to be “more
similar than dissimilar.”.

Applicant feebly pointed to the lack of evidence of actual
confusion, but the Board observed once again that the lack of such
evidence carries little weight in the ex parte context, where the
registrant has no chance to be heard. In any event, the parties
offered their services in different geographic locations (Colorado
and Tennessee), suggesting that there has not been an opportunity
for confusion to occur.

And so, the Board affirmed the refusal.

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