Gila River Gaming Enterprises, Inc.

Trademark Trial and Appeal Board

Apr 10, 2012

No. 76699882 (T.T.A.B. Apr. 10, 2012)

Mailed:
April 10, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Gila River Gaming Enterprises, Inc.
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Serial No. 76699882
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Saba Bazzazieh of Rosette, LLP for Gila River Gaming
Enterprises, Inc.

Mariam Aziz Mahmoudi, Trademark Examining Attorney, Law
Office 106 (Mary I. Sparrow, Managing Attorney).
_______

Before Holtzman, Bergsman and Ritchie,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Gila River Gaming Enterprises (“applicant”) filed an
application on the Principal Register for the mark AIRIA,
in standard character form, for “night clubs,” in Class 41.
The examining attorney refused registration under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark, when used
in connection with “night clubs,” so resembles the
registered mark AREA, in standard character form, for
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 76699882
2
“night clubs,” in Class 41, as to be likely to cause
confusion.1
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the 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. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
A. The similarity or dissimilarity and nature of the
services described in the application and registration
and likely-to-continue trade channels and classes of
consumers.

Both parties use their marks to identify “night
clubs.” Because the services are identical, we must

1 Registration No. 3525909, issued October 28, 2008. The
examining attorney also cited Registration No. 3605997 for the
mark AREA and design for “night clubs” owned by the same
registrant. We focus our analysis on registrant’s mark in
standard character form because if we do not find likelihood of
confusion with respect to the marks as presented in standard
character form, we would not find a likelihood of confusion with
a mark for the same words with the addition of a design element.
See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
Serial No. 76699882
3
presume that they are sold in the same channels of trade
and to the same classes of consumers.
B. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks,
we are mindful that the test is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression so
that confusion as to the source of the services offered
under the respective marks is likely to result. San
Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June
5, 1992). The proper focus is on the recollection of the
Serial No. 76699882
4
average customer, who retains a general rather than
specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). Since the services at issue are night
clubs, we are dealing with average consumers.
We also note that where, as here, the services are
identical, the degree of similarity necessary to find
likelihood of confusion need not be as great as where there
is a recognizable disparity between the services. Century
21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen
Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007);
Schering-Plough HealthCare Products Inc. v. Ing-Jing Huang,
84 USPQ2d 1323, 1325 (TTAB 2007).
While a mark has no correct pronunciation, especially
a coined term, applicant’s mark AIRIA is likely to be
pronounced as “area.” Applicant argues, to the contrary,
that “the most likely phonetic vocalization is thoroughly
distinct from AREA, and will instead be pronounced: ‘a:-
i:’-ri:-ə,’ with the stress on the second syllable.”2 Even
assuming that to be true, the two marks are, at a minimum,

2 Applicant’s Brief, p. 6.
Serial No. 76699882
5
similar in sound. Imperfectly pronounced, the two marks
can be extremely similar in terms of sound.
The marks are similar in appearance:
AREA vs. AIRIA
In light of the phonetic similarity of the marks and the
identity of the services, the visual differences in the
marks AREA and AIRIA do not create dissimilar marks. In re
Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985)
(“Moreover, although there are certain differences between
the [marks’ CAYNA and CANA] appearance, namely, the
inclusion of the letter ‘Y’ and the design feature in
applicant’s mark, there are also obvious similarities
between them. Considering the similarities between the
marks in sound and appearance, and taking into account the
normal fallibility of human memory over a period of time (a
factor that becomes important if a purchaser encounters one
of these products and some weeks, months, or even years
later comes across the other), we believe that the marks
create substantially similar commercial impressions”). See
also United States Mineral Products Co. v. GAF Corp., 197
USPQ 301, 306 (TTAB 1977) (“‘AFCO’ and ‘CAFCO,’ which
differ only as to the letter ‘C’ in USM’s mark, are
substantially similar in appearance and sound”) and In re
Bear Brand Hosiery Co., 194 USPQ 444, 445 (TTAB 1977) (“The
Serial No. 76699882
6
mark of the applicant, ‘KIKS’ and the cited mark ‘KIKI’
differ only in the terminal letter of each mark. While
differing in sound, the marks are similar in appearance and
have a somewhat similar connotation”).
Applicant contends that the examining attorney’s
analysis of the visual similarity of the marks is
illogical. The examining attorney argued in her Final
Office action that the marks are visually and aurally
similar because they both start with the letter “A, contain
the letter “R” as the second or third letter, and end with
similar sound vowels “IA” or “EA.” In response, applicant
argues that under the examining attorney’s logic, the mark
AREA is visually similar to ARTESIA, ARMENIA, ABRACADBRA,
etc.3 The similarity between those terms and registrant’s
mark is not at issue. Applicant’s argument is not
persuasive because it attempts to misdirect our attention
from the similarity of the marks at issue: AREA and AIRIA.
To the extent that applicant’s mark is pronounced as
“area,” consumers are likely to think of the word “area”
which means “any particular extent of space or surface … a
geographical region; tract: … any section reserved for a

3 Applicant’s Brief, pp. 10-11.
Serial No. 76699882
7
specific function.”4 Because the marks are used in
connection with “night clubs,” the marks engender the
commercial impression of a “section reserved for a specific
function” (i.e., dancing and entertainment). In other
words, the place where the action is happening or the place
to be. Thus, the marks will have a similar meaning and
engender similar commercial impressions. To the extent
applicant’s mark may be pronounced “a:-i:’-ri:-ə,” the
commercial impression would not necessarily be different.
In view of the foregoing, we find that the
similarities of the marks outweigh the differences in
appearance, sound, meaning and commercial impression.
C. The conditions under which and buyers to whom sales
are made, i.e., “impulse” vs. careful, sophisticated
purchasing.

Applicant argues that “[t]he relevant audience in this
instance – people who enjoy going to nightclubs – are
sufficiently sophisticated that any likelihood of confusion
remains highly remote.”5
The “area” [sic] mark is used to
identify services offered by a
nightclub in Hollywood/Los Angeles,
California. The “AIRIA” mark is used
to identify services offered by a

4 The Random House Dictionary of the English Language
(Unabridged), p. 110 (2nd ed. 1987). The Board may take judicial
notice of dictionary evidence. University of Notre Dame du Lac
v. J. C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
5 Applicant’s Reply Brief, p. 4.
Serial No. 76699882
8
nightclub in Chandler, Arizona. The
average consumer in this instance –
clubgoers – are not likely to confuse
services offered by a nightclub located
in the heart of the Los Angeles “party”
scene on La Cienega Boulevard with the
services offered by a nightclub located
inside a casino located on the Gila
River Indian Community Reservation in
Chandler, Arizona. They are not likely
to confuse the services offered by a
nightclub that is “open and airy” and
popular with “Hollywood heavyweights”
and “celebrities” with those offered by
a “high-energy” nightclub having
“glimmering lights,” “pumping rock
remixes and “fresh hip-hop mash-ups.”
In short, they are sufficiently
sophisticated to discern the difference
between the services offered between
the “area” [sic] nightclub and the
“AIRIA” nightclub such that there is
simply no likelihood of confusion.”6

First, applicant’s comparison of its geographic
trading areas in Chandler, Arizona with registrant’s
geographic trading area in Los Angeles, California is
irrelevant. Because registrant’s and applicant’s
description of services are geographically unrestricted, we
may not limit our consideration of the question of
likelihood of confusion to the existing trading areas of
the registrant and applicant. We must decide the issue of
likelihood of confusion as if applicant’s mark and
registrant’s mark were in use throughout the entire United

6 Applicant’s Reply Brief, p. 5.
Serial No. 76699882
9
States. In re Integrity Mutual Insurance Company, Inc.,
216 USPQ 895, 896 (TTAB 1982)
Second, applicant argues that “clubgoers” are
sophisticated and presumably exercise a high degree of care
regarding the clubs they attend. However, this is
attorney argument without any evidentiary support.
Moreover, this argument presumes that “clubgoers” are
regular attendees and it fails to take into account
consumers who go “clubbing” on a less frequent basis (e.g.,
people who frequent nightclubs on special occasions such as
anniversaries, birthdays, holidays, etc.).
Because of the lack of evidentiary support, we find
that this du Pont factor is neutral.
D. The fame of registrant’s mark.
Applicant argues that the examining attorney has not
analyzed the fame of registrant’s mark and, therefore, this
factor favors applicant. Because this is an ex parte
proceeding, we do not expect the examining attorney to
submit evidence of fame of the cited mark. This du Pont
factor is treated as neutral. See In re Thomas, 79 USPQ2d
1021, 1027 n.11 (TTAB 2006).
Balancing the factors.
Because the marks are similar and the services are
identical and are presumed to move in the same channels of
Serial No. 76699882
10
trade and are presumed to be sold to the same classes of
consumers, we find that applicant’s mark AREA, for “night
clubs,” so resembles the mark AIRIA, for “night clubs,” as
to be likely to cause confusion.
Decision: The refusal to register is affirmed.