IP Law Daily, TRADEMARK—TTAB: Principal Register has room for another life coaching service mark with ‘EVOLVE’ element, (Aug 22, 2022)

By Matthew Hersh, J.D.

Because so many life coaches already used the word, it would not cause confusion with the particular mark already registered.

A trademark examining attorney erred in finding that the mark EVOLVE LIFE SYSTEMS was likely to cause confusion with the mark EVOLVED LYFE, the Trademark Trial and Appeal Board has held in a nonprecedential opinion. The Board, reviewing what it deemed “a very close case” involving two marks in the crowded field of life coaching systems, found that the weakness of the existing mark and the relative dissimilarity of the marks—particularly in light of the many other life coaching services using the word “evolved”—outweighed the legal identity of the services offered (In re Copeland, August 15, 2022, Heasley, D.).

The action arose out of an application by Craig S. Copeland, an author and lifestyle coach and self-described “Disruptive Transformation Theorist” from Santa Monica, California, seeking registration on the Principal Register of the mark EVOLVE LIFE SYSTEMS (in standard characters, with “SYSTEMS” disclaimed) for various counseling and self-improvement services. The trademark examining attorney refused registration on the ground that the mark, as used in connection with these services, so resembled the registered mark EVOLVED LYFE (in standard characters, with “LIFE” disclaimed) for “life coaching services in the field of law of attraction and manifestation,” as to be likely to cause confusion. (Not much can be found online about the owner of the EVOLVED LYFE mark. The applicant sought review by the Board, leading to this opinion.

Likelihood of confusion. The Board, finding it “a very close case,” reversed the examining attorney in a nonprecedential opinion. The Board’s analysis centered particularly on three factors.

Analysis of the relatedness of the services, the Board found, strongly supported a likelihood of confusion. The owner of the existing mark offers “life coaching services in the field of law of attraction and manifestation,” the Board noted—a service that entails advising clients about a new age belief “that thinking about something attracts it and causes it to manifest in your life.” These services, the Board noted, were easily encompassed by the applicant’s more broadly phrased “counseling in the field of personal development, namely, self-improvement, self-fulfillment.” Moreover, the Board noted, the examining attorney cited six use-based third-party registrations, each reciting both sorts of services under a single mark. The services were therefore “legally identical,” the Board concluded.

On the other hand, the Board noted, the existing mark was conceptually and commercially weak—thus weighing against a likelihood of confusion. To “evolve,” according to the dictionary, means “to change or develop slowly often into a better, more complex, or more advanced state: to develop by a process of evolution.” The existing mark, the Board noted, likewise suggests “a desired result of life coaching services: to help one evolve for the better, progressively improving the trajectory of one’s life.” To be sure, the Board noted, there were relatively few existing registrations for similar services with the word “evolve,” and their marks were distinctive from the existing mark. But all of those services appeared to use the word “evolve” in the same way in connection with their services. “The combination EVOLVE[D] LIFE is attractive to many life coaches,” the Board noted, “and commonly adopted to convey the suggestive connotation that life coaching will help its recipients evolve for the better.”

Finally, the Board noted, the relative dissimilarity of the marks—at least in the present factual context—also weighed against a finding of likelihood of confusion. The applicant’s mark was in the present tense, the Board noted, while the existing mark was in the past tense. Moreover, they had a different number of symbols and spelled the word “life” (or “lyfe”) differently. To be sure, the Board noted, the two marks share the same dominant term—evolve—but so too did many other marks. “Given the plethora of third-party uses of the term EVOLVE, a substantial number in combination with LIFE,” the Board noted, “we find that consumers are less likely to view Applicant’s mark as ‘another iteration’ of Registrant’s mark, and more likely to view it as an other, separate source in a crowded field of life coaching and counseling.”

At bottom, the Board concluded, while it was a close call, “the ubiquity of EVOLVE[D] and LIFE in the field and the differing wording in the marks outweigh the similarity of services.” The registration refusal was reversed.

The Case is Serial No. 90042595.

Attorneys: Erik M. Pelton (Erik M. Pelton & Associates) for Craig S. Copeland. Philip Liu for the USPTO.

Cases: Trademark USPTO