Gazillion, Inc.

Trademark Trial and Appeal BoardNov 15, 2010

No. 77599331 (T.T.A.B. Nov. 15, 2010)

Mailed: 11/15/2010 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Gazillion, Inc. ________ Serial No. 77599331 Serial No. 77614085 _______ Tsan Abrahamson of Cobalt LLP, for Gazillion, Inc. Linda Estrada, Trademark Examining Attorney, Law Office 104 (Chris Doninger, Managing Attorney). _______ Before Quinn, Kuhlke, and Ritchie, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: Gazillion, Inc. (“applicant”) filed an application to register the mark GAZILLION in standard character format for “software, namely, educational computer software games; pre-recorded DVDs featuring educational instruction,” in International Class 9 and “toys, games and playthings, namely action figures, card games, and board games,” in International Class THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 77599331 Serial No. 77614085 2 28.1 Shortly thereafter applicant filed an application to register the same mark for “entertainment services in the nature of on-line interactive games provided by means of a global computer network; online journals, namely, blogs featuring user-defined content relating to video game play and massive multi-player game play; entertainment and educational software production services for others,” in International Class 41.2 In both applications, the trademark examining attorney refused registration of the mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so resembles the previously registered mark GAZILLIONAIRE, registered for “computer game programs,”3 that when used in connection with applicant’s identified goods and services, it will be likely to cause confusion, mistake, or to deceive. Upon final refusal of registration, applicant filed a timely appeal in each application. Both 1 Application Serial No. 77599331, filed October 23, 2008, pursuant to Section 1(b) of the Trademark Act, 15 USC §1051(b), alleging a bona fide intent to use in commerce. 2 Application Serial No. 77614085, filed November 13, 2008, pursuant to Section 1(b) of the Trademark Act, 15 USC §1051(b), alleging a bona fide intent to use in commerce. 3 Registration No. 1931698, in International Class 28, issued October 31, 1995, based on first use on August 10, 1994 and first use in commerce on October 8, 1994. Sections 8 and 15 affidavits accepted and acknowledged. Renewed. Serial No. 77599331 Serial No. 77614085 3 applicant and the examining attorney filed briefs, and upon the examining attorney’s motion, the cases were consolidated since they involve common issues of law and fact. After careful consideration of the arguments and evidence of record, we affirm the refusal to register in each case. We base our determination under Section 2(d) on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and/or services. See Federated Foods, Inc. v. Fort Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks”). We consider each of the factors as to which applicant or the examining attorney presented arguments or evidence. The Marks We consider and compare the appearance, sound, connotation and commercial impression of the marks in Serial No. 77599331 Serial No. 77614085 4 their entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). Applicant’s mark is GAZILLION, while the mark in the cited registration is GAZILLIONAIRE. Accordingly, the only difference between the marks are the three letters “A-I-R-E.” This forms a different but related word. The marks are similar in appearance and sound. Regarding the connotation and commercial impression, applicant points out that the term “GAZILLION” means, generally, “a lot” while the term “GAZILLIONAIRE” means “one who has a lot,” especially “of money.” We disagree with applicant that these are vastly different connotations. Furthermore, we find that GAZILLIONAIRE is arbitrary for the goods identified in the cited registration, and therefore entitled to increased protection. Accordingly, we find that the marks are similar in sight, sound, commercial impression and connotation. In saying this, we take into account the inevitable fallability of human memory. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers . . . are not infallible.”). Serial No. 77599331 Serial No. 77614085 5 In view of the foregoing, the first du Pont factor weighs in favor of finding a likelihood of confusion. The Goods and Services and Channels of Trade Preliminarily, we note that the more similar the marks at issue, the less similar the goods need to be for the Board to find a likelihood of confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). Moreover, goods or services need not be identical or even competitive in order to support a finding of likelihood of confusion. Rather, it is enough that goods or services are related in some manner or that some circumstances surrounding their marketing are such that they would be likely to be seen by the same persons under circumstances which could give rise, because of the marks used or intended to be used therewith, to a mistaken belief that they originate from or are in some way associated with the same producer or that there is an association between the producers of each parties’ goods or services. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991). With regard to the Class 9 goods in Application No. 77599331, we find that “educational computer software games” are a subset of the “computer game Serial No. 77599331 Serial No. 77614085 6 programs” identified in the cited registration. Accordingly, those goods are legally identical. With regard to the remaining items for which applicant seeks registration, the examining attorney submitted numerous third-party registrations that include goods identified in the cited registration on the one hand and goods or services identified in the pending applications on the other; for example, Registrations No. 3473539 (“computer game programs” and “action figures and accessories thereto”), No. 3664611 (computer game software” and “toy figures”), and No. 3449417 “computer game software” and “action figures”) with regard to the goods in Class 28 of Application No. 77599331. The examining attorney also submitted Registration No. 2944216 (“computer video games” and “entertainment services, namely providing online computer games”), No. 3522759 (“computer programs for playing computer games” and “on-line games”), and No. 2836746 “video game software” and “providing on-line video games”) with regard to the services in Class 41 of Application No. 77614085. We find that these third-party registrations serve to suggest that the goods and services are of a type Serial No. 77599331 Serial No. 77614085 7 which may emanate from a single source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). We further find that both applicant’s and registrant’s goods and services are likely to travel through the same trade channels and be purchased by the same classes of purchasers. See Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983). That is, we find the goods and services to be related, and there are no limitations with regard to their channels of trade such that they might be deemed to be unrelated. Accordingly, the second and third du Pont factors weigh in favor of finding a likelihood of confusion. Consumer Sophistication Applicant argues that its consumers are sophisticated and would recognize the difference between the GAZILLIONAIRE mark as used by registrant and the GAZILLION mark as used by applicant for their respective goods and services. There is no evidence of record to indicate that the purchasers of computer games, on-line computer games, other toys, games, or services related to computer games at issue in this proceeding are sophisticated. Rather, in the absence Serial No. 77599331 Serial No. 77614085 8 of any limitation in the identifications, we presume that the consumers would include ordinary consumers, who would use nothing more than ordinary care in making their purchasing decisions. Accordingly, we deem this factor to be neutral. Balancing the Factors Considering all of the evidence of record as it pertains to the du Pont factors, we conclude that the marks are similar; the goods and services are related; and they are likely to be sold through the same channels of trade to the same classes of purchasers. Accordingly, we find a likelihood of confusion between applicant’s mark and the cited registration in both applications. Decision: The refusal to register in both cases is affirmed.