IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
IN THE UNITED STATES PATENT AND TRADEMARK OFFICEIn re Trademark Application ofTrademark Attorney: Margaret PowerGreenhouse Capital Management, LLCSerial No: 77/897,771Law Office: 103Filed: December 21, 2009Attorney Docket Number278‐2002‐USMark:Commissioner for TrademarksP.O. Box 1451Alexandria, VA 22313‐145RESPONSE TO OFFICE ACTIONThis communication responds to the Office Action emailed on March 29, 2010 inwhich the Examining Attorney refused registration of Applicant’s stylizedGREENHOUSE CAPTIAL PARTNERS mark on the grounds of an alleged likelihood ofconfusion with U.S. Registration No. 3,214,428 for GREENHOUSE. Applicantrespectfully disagrees that there is any likelihood of confusion and requests that theExamining Attorney reconsider the refusal and consider Applicant’s response below. Inaddition, the Examining Attorney has requested that Applicant enter a disclaimer ofCAPITAL PARTNERS and inquired into the significance of GREENHOUSE , both ofwhich Applicant has also addressed in this response.ANALYSISI.APPLICANT’S GREENHOUSE CAPTIAL PARTNERS MARK DOES NOTCREATE A LIKELIHOOD OF CONFUSION WITH THE CITED MARKApplicant respectfully submits that there is no likelihood of confusion betweenApplicant’s stylized GREENHOUSE CAPTIAL PARTNERS mark and the mark in thecited registration due to (1) the cited Registrant’s previous consent to an identical mark1
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771for identical services; (2) the crowded field of marks consisting of or containing the termGREENHOUSE; (2) the dissimilarity of the marks in terms of sight, sound, and meaningand commercial impression; and (3) the dissimilarity of Applicant’s and Registrant’sservices.A. The Owner of the Cited Registration Has Previously Consented to theRegistration of an Identical Mark in Connection with Identical ServicesThe cited trademark registration for GREENHOUSE already co‐exists on thePrincipal Register with a trademark that is far more similar than Applicant’s stylizedGREENHOUSE CAPTIAL PARTNERS mark. Specifically, when the owner of citedRegistration No. 3,214,428 filed its application to register GREENHOUSE in connectionwith “branding, marketing and advertising services, namely, consulting others increating corporate and brand identities; advertising services, namely promoting thegoods and services of others associated with particular brands; and strategic businessplanning,” the U.S. Patent and Trademark Office issued a December 15, 2004 OfficeAction refusing registration pursuant to §2(d) of the Lanham Act on the grounds of alikelihood of confusion with prior Registration No. 2,851,454 for THE GREENHOUSE inconnection with “business marketing consulting services and advertising services,namely, creating corporate and brand identity for others.” See Exhibit A, which is acopy of the December 15, 2004 Office Action.In response to the December 15, 2005 Office Action, the owner of the citedtrademark registration submitted a consent agreement between it and the owner ofRegistration No. 2,851,454. See Exhibit B, which is a copy of the consent agreementsubmitted by the cited registrant. In paragraph 3 of that consent agreement, the ownerof the cited registrant admits that it did not believe there was any likelihood ofconfusion between the two marks. Id. Because consent agreements must be given greatweight in determining whether there is a likelihood of confusion, the U.S. Patent and2
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771Trademark Office withdrew the refusal against the cited registration. Amalgamated Bankof New York v. Amalgamated Trust & Savings Bank, 842 F.2d 1270 (Fed. Cir. 1988);TMEP § 1207.01(d)(viii) (the examining attorney should not substitute his ownjudgment regarding likelihood of confusion for the judgment of the real parties ininterest).Likewise, in the instant case, Applicant respectfully requests that the ExaminingAttorney give great weight to the fact that the cited registrant has previously judgedthere to be no confusion between its GREEN HOUSE mark and a prior registered markfor GREENHOUSE for identical services. If, according the cited registrant, there is nolikelihood of confusion between those marks, which are identical except for the articleTHE, then there is definitely no likelihood of confusion between the cited registrationfor GREENHOUSE and Applicant’s stylized GREENHOUSE CAPTIAL PARTNERSmark. Unlike Registration No. 2,851,454 for THE GREENHOUSE, Applicant’s markcontains the additional words “CAPITAL PARTNERS,” which serve to distinguish themarks much more than the common article “THE.” Moreover, Applicant’s mark isstylized, containing a color claim of the color green in connection with the term GREENin GREENHOUSE. Finally, cited Registration No. 3,214,428 for GREENHOUSE andRegistration No. 2,851,454 for THE GREENHOUSE were both for identical services.Unlike Registration No. 2,851,454, Applicant does not provide advertising service butrather venture capital services. Therefore, Applicant respectfully submits that ifRegistration No. 3,214,428 for GREENHOUSE can co‐exist with Registration No.2,851,454 for THE GREENHOUSE on the Principal Register, then Registration No.3,214,428 for GREENHOUSE can also co‐exist with Applicant’s much more dissimilarand distinguishable stylized GREENHOUSE CAPTIAL PARTNERS mark.B. GREENHOUSE is part of a crowded field that obviates any likelihood of3
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771confusionWhen a mark exists in a crowded field, the public is presumed to be able todistinguish the mark from other marks that may have only minor differences. KingCandy Co. v. Eunice King’s Kitchen Inc., 182 U.S.P.Q. 108 (C.C.P.A. 1974) (“confusion isunlikely because the marks are so widely used that the public easily distinguishesslight differences in the marks as well as differences in the goods ”); Jupiter HostingInc. v. Jupitermedia Corp., 76 U.S.P.Q.2d 1042 (N.D. Cal. 2004); In re Hamilton Bank, 222U.S.P.Q. 174, 179 (T.T.A.B. 1984). Pursuant to In re E.I. duPont de Nemours & Co., the“number and nature of similar marks in use on similar goods” must be taken intoaccount when determining whether a likelihood of confusion exists. 476 F.2d 1357(C.C.P.A. 1973).In the instant case, the term GREENHOUSE is part of a crowded field for a widevariety of goods and services. In this regard, a search of the PTO’s records disclosesover 50 live trademark registrations for marks containing the term GREENHOUSE:TrademarkGPC GREENHOUSEPRODUCE COMPANYGREENHOUSEGREENHOUSEHYDRO GREENHOUSEGREENHOUSE RECORDSBIG TOM GREENHOUSEEL ROSAL GREENHOUSEPRODUCTSRED‐SUN GREENHOUSETOMATOESKINGDOM FRESHGREENHOUSETHE GREENHOUSEGARDNER’S GREENHOUSEGoods/ServicesDistributorship servicesRegistration No.3,608,922Computer software and servicesOnline journals and blogsVivariumAudio and video goodsFresh tomatoesFresh 33,226,816Fresh tomatoes3,175,539Live animals3,331,154Health spa servicesCosmetics3,035,8182,992,4424
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771GREENHOUSENATIONAL GREENHOUSECOMPANYGLOBAL GREENHOUSELIGHTINGGREENHOUSEANSI ACCREDITEDPROGRAM GREENHOUSEGAS VALIDATION ANDVERIFICATIONANSI ACCREDITEDPROGRAM GREENHOUSEGAS VALIDATION RTH AMERICANGREENHOUSE HOTHOUSEVEGETABLE GROWERSGREENHOUSETHE GREENHOUSETAVERNGREENHOUSEMEGASTOREFROM OUR GREENHOUSETO YOUR GREEN HOMEGREENHOUSEGREENHOUSEGARLAND GREENHOUSEGARLAND GREENHOUSEGREENHOUSEGREENHOUSEWINDOWSILLWholesale distributorshipservicesMetal framed enclosures2,987,284Lights, fans, and exhaust systems3,717,992Cleaning agentsGreenhouse gas validation andverification3,811,5483,802,257Greenhouse gas verification3,802,256Online retail store servicesFruits, vegetables, produce3,789,1973,772,619Management of database contentRestaurant3,704,6783,691,830Online retail store servicesLive flowers and plants3,610,6823,672,069Personal recruitment services andemployment agenciesCleaning servicesCoatings, paints, buildingproductsCoatings, paints, buildingproductsEntertainment servicesEntertainment 7593,828,7583,803,6093,796,3623,553,980
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771GREENHOUSEJIFFY PROFESSIONALGREENHOUSETHE GREENHOUSE GASPROTOCOLGREENHOUSE MALLGREENHOUSE GROWERPROJECT GREENHOUSEYOUR BACK‐OF‐THE‐HOUSE GREENHOUSEGREENHOUSETHE GREENHOUSE MALLGREENHOUSEGREENHOUSETHE GREENHOUSETHE ASPEN PROJECTRESEARCH GREENHOUSEETI’S GREENHOUSE GOLDGREENHOUSENGMA SE PRODUCTNEWSAMERICAN HARVESTGREENHOUSECOLORADO GREENHOUSEQUALITY HYDROPONICPRODUCEOLIVER’S GREENHOUSECOLLECTIONPlanters3,546,816Electronic publications3,548,517Retail store servicesPrinted periodicalsEducational servicesFresh fruits and rtainment servicesRetail store servicesPaper towelsRestaurant servicesAdvertising servicesFiberglassWholesale distributor of toysAdvertising servicesEducational publicationsConducting workshopsPromoting public ,090,568Landscape productsProviding vocational educationEducational services2,598,4482,240,7032,194,751Business magazine2,218,990Prefabricated greenhouses2,325,284Agricultural products2,082,994Artificial trees1,715,9906
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771NORTHERN LIGHTGREENHOUSEGREENHOUSE GROWERTEXAS GREENHOUSECOMPANYTHE GREENHOUSEHome greenhouses1,682,967Monthly magazineDistributorship services1,281,0861,268,282Health and beauty resort services938,313See Exhibit C (registration certificates of the marks listed above). The above chart doesnot even include pending applications for marks that contain the term GREENHOUSE,nor does it include the numerous common law trademark uses in the marketplace ofmarks containing the term GREENHOUSE.Accordingly, because the term GREENHOUSE is part of a crowded field ofmarks for a wide variety of goods and services, the purchasing public is aware of theexistence and use of multiple marks containing the term GREENHOUSE. Applicant’sstylized GREENHOUSE CAPTIAL PARTNERS mark is more distinguishable from thecited registration than many of the already co‐existing GREENHOUSE marks. In sum,consumers are conditioned to distinguish even slight differences between such marks ina crowded field, and there is no likelihood of confusion between Applicant’s stylizedGREENHOUSE CAPTIAL PARTNERS mark and the cited GREENHOUSE mark.C. Applicant’s mark is sufficiently dissimilar from the cited mark to obviateany likelihood of confusionBecause the purchasing public is familiar with a variety of GREENHOUSEmarks, the differences between Applicant’s mark and the cited mark suffice to avoidany likelihood of confusion. In order to determine whether there is a likelihood ofconfusion due to the similarity of the marks, the marks must be compared in terms ofsight, sound, and meaning. T.M.E.P. § 1207.01(b)(i). Specifically, the ExaminingAttorney should not split marks into their component parts and then compare the partsof the marks to determine the likelihood of confusion. Little Caesar Enterprises v. Pizza7
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771Caesar, 834 F.2d 568, 571 (6th Cir. 1987).While two marks may share a common word, courts have held that the inclusionof additional words is sufficient to avoid a likelihood of confusion. Inc. Publ. Corp. v.Manhattan Magazine, 616 F. Supp. 370, 379–80 (S.D.N.Y. 1985) (holding MANHATTANINC. not confusingly similar to INC. because the longer word “Manhattan exercises avisual dominance”); Express Lane Limited Partnership v. Harold Scott Lanes, 1990 U.S. Dist.LEXIS 16606, *11–12 (E.D. Wash. 1990) (holding that the inclusion of the additionalwords MUFFLER & BRAKE reduced the similarity in appearance between EXPRESSLANE and EXPRESS LANE MUFFLER & BRAKE); First Sav. Bank v. First Bank Sys., 101F.3d 645, 653 (10th Cir. 1996) (holding that FIRSTBANK and FIRSTBANK SYSTEM arenot phonetically similar due to the inclusion of the additional word SYSTEM); In re Bed& Breakfast Registry, 791 f.2D 157 (Fed. Cir. 1986) (holding BED & BREAKFASTREGISTRY and BED & BREAKFAST INTERNATIONAL not confusingly similar).In the instant case, there is no likelihood of confusion between Applicant’s markand the cited mark because (1) Applicant’s mark contains the additional wordsCAPITAL PARTNERS and a stylized color design that is not contained in the citedmark; (2) Applicant’s mark is pronounced differently from the cited mark;(3) Applicant’s mark conveys a different meaning from the cited mark; and (4) overallApplicant’s mark has a commercial impression that is separate and distinct from thecommercial impression of the cited mark. These differences are immediately apparentwhen viewing the marks in question:APPLICANT’S MARKCITED REGISTRATION NO. 3,214,428GREENHOUSEWith regard to sight or appearance, Applicant’s mark is visually different from8
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771the cited mark. In this regard, Applicant’s mark contains the additional wordsCAPITAL PARTNERS. The cited mark does not contain the words CAPITAL orPARTNERS or any similar terms. In addition, Applicant’s mark is stylized with a colorclaim. The term GREEN in GREENHOUSE is depicted in the color green, the entiremark is in lower case with the additional words CAPITAL PARTNERS locatedunderneath the word GREENHOUSE. Therefore, while the marks admittedly share thecommon term GREENHOUSE, Applicant respectfully submits that—in light of thecrowded field of GREENHOUSE marks—the instant case is analogous to the numerouscases cited above in which the courts have held that the inclusion of an additionalwords and/or a stylized design is sufficient to avoid a likelihood of confusion evenwhen two marks may share a common term.With regard to sound or pronunciation, Applicant’s mark and the cited mark arepronounced differently. The difference in pronunciation is obviously due to theadditional words CAPITAL PARTNERS contained in Applicant’s mark, which are notcontained in the cited mark. Therefore, upon hearing Applicant’s mark and the citedmark, the purchasing public is not likely to be confused.With regard to meaning or connotation, Applicant’s mark and the cited mark donot impart the same meaning in the minds of consumers. By virtue of the additionalwords CAPITAL PARTNERS, Applicant’s mark suggests its services relate to capitalfunding. In fact, this is exactly why the Examining Attorney has requested thatApplicant disclaim CAPITAL PARTNERS. This connotation is not imparted by thecited mark. The cited mark is simply GREENHOUSE and the term standing by itself istoo vague to convey anything concrete; most likely, to the extent it conveys a meaning,the meaning conveyed would be the ordinary meaning of the term GREENHOUSE: astructure used for cultivating plants. Such a meaning is clearly distinguishable from the9
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771meaning imparted by Applicant’s mark. Accordingly, Applicant’s mark and the citedmark have clearly different meanings that obviate any likelihood of confusion.Finally, Applicant’s mark creates a commercial impression that is separate anddifferent from any commercial impression conveyed by the cited mark. This overalldifferent commercial impression is due to the differences in appearance, sound, andmeaning between the marks discussed in the preceding paragraphs. For all of theforegoing reasons, Applicant respectfully submits that the different commercialimpression of the marks obviate any likelihood of confusion.D. Applicant’s services are sufficiently different from Registrant’s services toobviate any likelihood of confusionApplicant’s venture capital services are sufficiently distinguishable fromRegistrants’ branding and advertising services to avoid any likelihood of confusion. Ifthe goods and services offered are dissimilar, then there is less likelihood of confusion.TMEP § 1207. Where goods or services are noncompeting, the degree of trademarksimilarity needed to establish likelihood of confusion is increased. TMEP§ 1207.01(a)(i). In fact, when the goods and services are sufficiently dissimilar, evenidentical marks may not cause confusion. Id.In the instant case, Applicant’s venture capital services are distinguishable fromthe branding and advertising services in the cited registration, especially in light of theexistence of a crowded field for marks containing the term GREENHOUSE. In thisregard, Applicant’s services and the services listed in the cited registration are listedbelow.APPLICANT’SGOODSGOODS INVenture capital advisory services; venture capital fundingservices to emerging and start‐up companies; venture capitalservices, namely, providing financing to emerging and start‐upcompanies, in International Class 36Branding, marketing and advertising services, namely10
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771CITEDconsulting others in creating corporate and brand identities;REGISTRATION advertising services, namely promoting the goods and services ofNO. 3,214,428others associated with particular brands; and strategic businessplanning, in International Class 35With regard to U.S. Registration No. 3,214,428, the services listed in theregistration are branding, marketing, and advertising services, not venture capitalservices. While Applicant notes that the Examining Attorney argues that somecompanies offer both venture capital services and branding and advertising services,this is not such a situation. Applicant does not provide branding and advertisingservices, and Registrant does not provide venture capital services. Moreover, the factthat some persons or entities may provide both venture capital and branding andadvertising services is less relevant in the instant case because the marks at issue are notidentical and there is a crowded field of GREENHOUSE marks.Simply put, a start‐up company in need of funding cannot get seed stage capitalfrom Registrant. Applicant provides start‐ups with investment funding ranging from 250,000 to 1 million. Its clients are necessarily sophisticated and will not confuse aventure capital company with an advertising company. The services that Applicantand Registrant provide are so disparate no likelihood of confusion is possible.Given the crowded field of GREENHOUSE marks, Applicant respectfullysubmits that these additional differences in the parties’ respective services are morethan sufficient to obviate any likelihood of confusion.II.DISCLAIMERThe Examining Attorney has requested that Applicant disclaim the termCAPITAL PARTNERS. Accordingly, Applicant has entered the requested disclaimer inthe TEAS online response form.III.SIGNIFICANCEFinally, the Examining Attorney has inquired whether the term GREENHOUSE11
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771has any significance in the financial or venture capital industries. GREENHOUSE hasno significance in the industry, and Applicant has responded accordingly in the TEASonline response form.CONCLUSIONAccordingly, and for all the foregoing reasons, Applicant respectfully submitsthat its application is now in proper form for registration and should be approved forpublication, and such action is requested.Respectfully submitted,Date:September 28, 2010By:Bruno TarabichiOWENS TARABICHI LLP111 N. Market St., Suite 730San Jose, California 95113Tel. (408) 298‐8204Fax (408) 521‐2203btarabichi@owenstarabichi.comAttorneys for Applicant12
Trademark Attorney: Margaret PowerLaw Office 103Serial No. 77/897,771EXHIBIT A13
UNITED STATES PATENT AND TRADEMARK OFFICESERIA
RED‐SUN GREENHOUSE TOMATOES . GREENHOUSE PRODUCT NEWS Business magazine 2,218,990 AMERICAN HARVEST GREENHOUSE Prefabricated greenhouses 2,325,284 COLORADO GREENHOUSE QUALITY HYDROPONIC PRODUCE .
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