In Re Hair Masters Services, Inc, 907 F.2d 157 (Fed. Cir. 1990)

The decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board, Serial No. 647,045 (Sept. 28, 1989) refusing registration of the service mark

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

for the services "Men's and women's hair cutting, styling, coloring, perming and nail care services rendered in unisex, male/female hair salons", in view of the prior registration of the trademark

HAIRMASTER

for "Toilet and cosmetic preparations--namely, hair tonic", is reversed.

OPINION

Likelihood of confusion, 15 U.S.C. § 1052(d), is a question of law, and is reviewed for correctness. Bongrain Int'l (Am.) Corp. v. Delice de France, Inc., 811 F.2d 1479, 1485, 1 USPQ2d 1775, 1779 (Fed. Cir. 1987).

The Board held that there was a likelihood of confusion between the two marks. We have reviewed the evidence as to the DuPont factors [In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567-68 (CCPA 1973) ], and considered the cumulative effect of the similarities and differences in the essential characteristics of the goods and marks. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103, 192 USPQ 24, 29 (CCPA 1976). We conclude that the differences in the services rendered under the applicant's mark as compared with the goods to which the registrant's mark is applied, coupled with the separate words and emphasis and the difference in presentation of the applicant's mark, outweigh the contrary arguments. While there are factors weighing on each side, on the record before us we do not discern the doubt favoring likelihood of confusion as would support refusal of registration. See In re Mars, 741 F.2d 395, 396, 222 USPQ 938, 938 (Fed. Cir. 1984) (each case must be decided on its facts).

MAYER, Circuit Judge, dissents.