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 In re The Chiro Place, Inc., Serial No. 90119392 (September 20, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman).
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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