A recent trademark opposition dispute has been decided between home healthcare competitors. This is another in a series of recent proceedings.
Background. In Right at Home LLC v. Love Right Home Care LLC, the Applicant, Love Right, sought registration of the mark LOVE RIGHT HOME CARE REFERRAL AGENCY. It disclaimed the exclusive right to “home care referral agency” separate and apart from the entire mark as shown. The application was for employment placement services in International Class 35.Right at Home opposed the application. The basis of the opposition was that it was likely to cause confusion with its RIGHT AT HOME registered marks for goods in services in Classes 16, 35, 42, 44, and 45.
Analysis. The Board analyzed the likelihood of confusion analysis under the du Pont Factors, that comprises 13 elements that Board can evaluate in determining whether a likelihood of confusion exists. In a likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. Opposers always bear the burden of proof in proving likelihood of confusion. Where as here, an Opposer relies on several marks, the Board compares the closest registered mark of Opposer with that of Applicant’s mark. In this case, the Board compared Opposer’s Reg. No. 4680962 for the mark THE RIGHT CARE, RIGHT AT HOME for home health care services and non-medical personal care assistance with Applicant’s mark and services. In comparing the similarity between the parties’ goods and services, the Board is limited to an examination of the goods and services that appear in the Opposer’s registration versus the goods in Applicant’s application. The Board concluded that the parties’ services are related and overlapping in part. Therefore, the similarity of the parties’ services factor favored Right at Home. The Board went on to state that although it viewed the mark THE RIGHT CARE, RIGHT AT HOME to be weak, even a weak mark is entitled to protection against a very similar mark with the same or related goods. Applicant, was also not able to show that there was prolific third-party use of similar marks such that a likelihood of confusion would be avoided.
Finally, with regard to the first du Pont factor, similarity of the marks, the Board held that it is often the first part of a mark that is most likely to be impressed on the mind of a purchaser. Here, it held that dominant portion of the Opposer’s mark to be “RIGHT AT HOME.” The dominant phrase in the Applicant’s mark is either “LOVE RIGHT” or “LOVE RIGHT HOME CARE.”
Conclusion. Based upon the totality of evidence, the Board ruled that the overall dissimilarity of the parties’ marks in appearance, sound, meaning, and commercial impression were dispositive. Therefore it would make confusion unlikely. The Board proceeded to dismiss the Opposition and ruled in favor of Applicant.
Attorney’s note: This case is an interesting example where one single du Pont factor can make all the difference in a Trademark Trial and Appeal Board proceeding.