Goods And More Corp.

Trademark Trial and Appeal Board

Aug 12, 2020

88196936 (T.T.A.B. Aug. 12, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 12, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Goods and More Corp.
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Serial No. 88196936
_____

Tuvia Rotberg of Amster, Rothstein & Ebenstein LLP,
for Goods and More Corp.
Kathleen Lorenzo, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
_____

Before Greenbaum, Heasley and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Goods and More Corp. (“Applicant”) seeks registration on the Principal Register
of the mark PLAY BRAINY (in standard characters) for “children’s educational
toys for developing fine motor, cognitive, counting and sorting skills; children’s
educational toys for developing fine motor, oral language, numbers, counting, colors
and alphabet skills” in International Class 28 (Emphasis added).1

1 Application Serial No. 88196936 filed on November 16, 2018, under Trademark Act Section
1(b), 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the
mark in commerce. In the Office Action of February 21, 2019 at TSDR 5-6, the Examining
Attorney requested that Applicant add “Children’s educational …” to the beginning of the
Serial No. 88196936
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the goods identified in the application, so resembles the mark PLAYBRAINS and
Design in the following format:

for the following goods and services:
Downloadable computer game software, for use with personal
computers, home video game consoles used with televisions, for arcade-
based video game consoles, mobile phones, personal digital assistants,
and handheld computers; multimedia software recorded on CD-ROM
featuring computer games; computer game discs; video game software;
video game discs; downloadable multimedia files containing artwork,
text, audio, video, games and Internet Web links relating to online,
computer and video games and entertainment, in International Class 9
Entertainment services, namely, providing online computer games and
online video games; providing a web-based system and on-line portal for
customers to participate in on-line game tournaments for video game
players and computer game players; providing an interactive website
featuring information relating to computer games, video games,

Identification of Goods because, as filed, the Identification was indefinite. See Trademark
Rule 2.32(a)(6), 37 C.F.R. § 2.32(a)(6). This requirement was requirement was made Final in
the Office Action of June 28, 2019 at TSDR 7-8. Applicant adopted the proposed Identification
of Goods in its Brief on appeal, 4 TTABVUE 13, and the Examining Attorney accepted the
amendments. Examiner’s Brief, 6 TTABVUE 3-4. The refusal regarding the Identification of
Goods is thus moot and the application record will be updated to reflect the Amended
Identification of Services.
Page references to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents
contained in the TSDR database are to the downloadable .pdf versions of the documents in
the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d
1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s
TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and
after this designation are the page references, if applicable.
Serial No. 88196936
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computer and video gaming entertainment and computer and video
gaming-related products; entertainment services, namely, providing
online interactive single and multi-player computer games; providing
information in the field of entertainment by means of a global computer
network, in International Class 41.2
on the Principal Register as to be likely to cause confusion, to cause mistake, or to
deceive.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Applicant and the Examining Attorney filed briefs. We affirm
the refusal to register.
I. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case

2 Registration No. 3939536, issued April 5, 2011; Combined Declaration of Use and
Incontestability under Trademark Act Sections 8 and 15, 15 U.S.C. §§ 1058 and 1065, filed
and accepted. The mark is described as follows: “Color is not claimed as a feature of the mark.
The mark consists of an ellipse with a brain design inside, and the word ‘PLAYBRAINS’
underneath.”

Serial No. 88196936
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must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods and services. See In
re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
II. Analysis
We now consider the arguments of Applicant and the Examining Attorney in view
of applicable law and the evidence of record. The likelihood of confusion factors
Applicant focused on in this appeal are the similarity or dissimilarity of the marks,
Serial No. 88196936
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the strength of the cited mark, the relatedness of the goods and/or services associated
with each mark, and the channels of trade and classes of purchasers therefor. We
discuss these factors below.
A. Comparison of the Marks
1. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019) (mem) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”).
On the other hand, different features may be analyzed to determine whether the
marks are similar. Price Candy Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105
Serial No. 88196936
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USPQ 266, 268 (CCPA 1955). Therefore, “in articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties.” In re Nat’l Data, 224 USPQ at 751. That is, one feature of a mark may be
more significant or dominant in creating a commercial impression. See In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
In analyzing the respective marks as a whole, we begin by reviewing the
dictionary definitions of their constituent parts. Relevant to the goods and services
presently at issue, definitions of the term PLAY as a noun include “the conduct,
course, or action of a game,” “recreational activity,” “an act, way, or manner of
proceeding,” and as a verb include “to engage in sport or recreation” and “to engage
or take part in a game.”3 The term BRAIN is defined as a noun referring, in relevant
part, to “the portion of the vertebrate central nervous system enclosed in the skull
and continuous with the spinal cord … that integrates sensory information from
inside and outside the body in controlling autonomic function …, in coordinating
and directing correlated motor responses, and in the process of learning.” 4 In the

3 MERRIAM-WEBSTER online dictionary, https://www.merriam-webster.com/dictionary/play.
Accessed August 7, 2020. The Board may take judicial notice of dictionary definitions that
are available in a printed format, are the electronic equivalent of a print reference work, or
have regular fixed editions. In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB 2016)
(taking judicial notice of definitions from Merriam-Webster Online Dictionary at merriam-
webster.com).
4 MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/brains. Accessed by the
Examining Attorney on May 7, 2020, and made of record as an attachment to the Examiner’s
Brief, 6 TTABVUE 15.
Serial No. 88196936
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plural form, the term BRAINS is a noun defined as “a very intelligent or intellectual
person.”5 The term BRAINY is defined as an adjective as “having or showing a well-
developed intellect.”6 Thus, the prefixes or first terms of the marks are identical, and
the suffixes or second terms of the marks have similar meanings referring to intellect
or intelligence. Taken together, the literal portions of the marks convey very similar
overall commercial impressions, that is, toys and games that are played to develop
one’s intelligence.
Applicant argues that:
Applicant’s Mark and the … [Registrant’s] Mark have very different
commercial impressions. The commercial emphasis of the …
[Registrant’s] Mark is that of the noun, brain (and imagery of a brain).
The “type” of brain expressed is a “play” brain, which also has the
connotation of a faux brain. … [T]he emphasis of the mark is that of a
brain. This is emphasized by the fact that the dominant feature of the
… [Registrant’s] mark is a representation of a brain. In comparison, the
commercial impression of Applicant’s Mark is that of an adjective. In
this regard, the term “BRAINY” modifies the method of how a user plays
(e.g. play “smartly”). Alternatively, the connotation may be to play until
the user becomes smart (“brainy”).7
However, “[t]he proper test is not a side-by-side comparison of the marks, but
instead whether the marks are sufficiently similar in terms of their commercial
impression such that persons who encounter the marks would be likely to assume a
connection between the parties.” In re i.am.symbolic, llc, 123 USPQ2d at 1748. The

5 Id.
6 MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/brainy. Accessed by the
Examining Attorney on May 7, 2020, and made of record as an attachment to the Examiner’s
Brief, 6 TTABVUE 23.

7 Applicant’s Brief, 4 TTABVUE 11.
Serial No. 88196936
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parties’ marks “‘must be considered … in light of the fallibility of memory ….’” In re
St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting
San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196
USPQ 1 (CCPA 1977)). Therefore, “[t]he focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks.” In re Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007).
There is no evidence of record that consumers of Applicant’s goods or Registrant’s
goods and services would view the marks as Applicant suggests, or would make such
fine distinctions as to the overall meanings or commercial impressions of the marks.
Counsel’s arguments are not evidence, and we will not rely on them. See Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting
Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is no substitute for evidence.”)). Moreover, Applicant’s arguments seeking
to distinguish the connotations and commercial impressions of the marks are based
on a comparison in which Applicant cautioned us not to engage, by dissecting them.8
In re Nat’l Data, 224 USPQ at 751 (“[L]ikelihood of confusion cannot be predicated on
dissection of a mark”).
The literal portions of Applicant’s and Registrant’s marks also appear in the same
order or structure; that is, the term PLAY followed by a term having the root BRAIN
(i.e., BRAINS or BRAINY). For example, in affirming the refusal to register the mark

8 Id. at 8.
Serial No. 88196936
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DETROIT ATHLETIC CO. for sports apparel retail services, the U.S. Court of
Appeals for the Federal Circuit, in In re Detroit Athletic, 128 USPQ2d at 1049, stated:
As the Board noted, both marks [DETROIT ATHLETIC CO. and
DETRIOT ATHLETIC CLUB, the latter registered for clothing items]
consist of three words beginning with the identical phrase “Detroit
Athletic” and ending with one-syllable “C” words (i.e., “Co.” and “Club”).
… Both marks, moreover, conjure an image of sporting goods or services
having a connection to Detroit. When viewed in their entireties, the
marks reveal an identical structure and a similar appearance, sound,
connotation, and commercial impression. These similarities go a long
way toward causing confusion among consumers. See In re Nat’l Data
Corp., 753 F.2d 1056, 1060 [224 USPQ 749, 752] (Fed. Cir. 1985) (finding
similarity between CASH MANAGEMENT ACCOUNT and THE CASH
MANAGEMENT EXCHANGE because they “are, in large part, identical
in sound and appearance and have a general similarity in cadence”); Van
Pelt & Brown, Inc. v. John Wyeth & Bro., Inc., 161 F.2d 244, 246 [73
USPQ 408, 411] (CCPA 1947) (finding similarity where both marks
“have the same number of syllables, the suffix of each is pronounced the
same, when spoken both have the same cadence and have a very little
distinguishable difference in sound”).
Applicant further argues that “Applicant’s Mark is phonetically [and from a visual
standpoint] distinguishable from the … [Registrant’s] Mark since the literal element
of the … [Registrant’s] Mark is a single word read in one utterance ‘playbrains.’
Applicant’s Mark, on the other hand, is read and sounded as two discrete words –
‘play’ ‘brainy.’”9 We disagree. The literal portions of Applicant’s mark and
Registrant’s mark are very similar, except for the space, which is inconsequential.
See, e.g., Seaguard Corp. v. Seaward Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984)
(“‘SEAGUARD’ and ‘SEA GUARD’ are, in contemplation of law, identical”); In re Best

9 Id. at 7 and 10.
Serial No. 88196936
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Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“There can be
little doubt that BEEFMASTER and BEEF MASTER are practically identical”).
Applicant additionally argues that “the word BRAINY of Applicant’s Mark is itself
a two-syllable word (i.e. ‘BRAIN’ ‘EE’). In fact, the distinctive EE sound present in
Applicant’s Mark is entirely absent from the … [Registrant’s Mark]” which contains
the “all lowercase word ‘playbrains.’”10 Again we disagree. The Board has often found
that marks differing by only a single letter are confusingly similar. See Apple Comput.
v. TVNET.net Inc., 90 USPQ2d 1393, 1396 (TTAB 2007) (VTUNES.NET vs.
ITUNES); Interlego AG v. Abrams/Gentile Entm’t Inc., 63 USPQ2d 1862, 1863 (TTAB
2002) (“Obviously, the marks LEGO and MEGO are extremely similar in that they
differ simply by one letter.”); In re Total Quality Grp. Inc., 51 USPQ2d 1474, 1476
(TTAB 1999) (“Applicant’s mark STRATEGYN and registrant’s mark STRATEGEN
are phonetic equivalents and differ by only one letter.”).
Applicant contends that “the … [Registrant’s] Mark is predominantly an ‘ellipse
with a brain design inside’ … [which] distinguishes the look of the marks.”11 Although
we recognize that Registrant’s mark contains this design element, “the verbal portion
of the mark is the one most likely to indicate the origin of the goods to which it is
affixed.” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co., KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015)
(citing CBS Inc. v. Morrow, 708 F.2d 1579, 21 USPQ 198, 200 (Fed. Cir. 1983)).

10 Id.
11 Id. at 7-8.
Serial No. 88196936
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Greater weight is often given to the wording because it is the wording that purchasers
would use to refer to or request the goods or services. See In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012).
Moreover, the design portion of Registrant’s mark, comprising a stylized depiction
of a brain, reinforces the mark’s similarity to the BRAINY portion of Applicant’s
PLAY BRAINY mark as a design/word equivalent. See, e.g., Izod, Ltd. v. Zip Hosiery
Co., 405 F.2d 575, 160 USPQ 202, 204 (CCPA 1969) (likelihood of confusion found
between representation of a head of a tiger-like animal and the words TIGER HEAD);
In re Rolf Nilsson AB, 230 USPQ 141, 143 (TTAB 1986) (likelihood of confusion found
between a design of a lion’s head silhouette and the word LION).
Applicant also urges that the stylization of the PLAYBRAINS portion of
Registrant’s mark is an additional distinguishing of the mark over Applicant’s PLAY
BRAINY mark appearing in standard characters.12 We once more disagree.
Applicant’s standard-character PLAY BRAINY mark could appear in the same font
as Registrant’s mark, resulting in a similar appearance. See In re Viterra Inc., 101
USPQ2d at 1909 (holding that the specific font style of a mark cannot serve as the
basis to distinguish it from a mark in standard character form).
This analysis leaves us with the conclusion that the literal portions of Applicant’s
and Registrant’s marks appear in the same order or structure – the term PLAY
followed by BRAINS or BRAINY. Comparing the marks as a whole, we find that the
marks PLAY BRAINY in standard characters and PLAYBRAINS and Design are

12 Applicant’s Brief, 4 TTABVUE 5, 7.
Serial No. 88196936
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more similar than they are different in appearance, sound, meaning and commercial
impression. The first DuPont factor, the similarity between the marks, thus supports
an ultimate finding that confusion is likely.
In an effort to challenge the Examining Attorney’s evidence that the marks are
similar, Applicant “submitted … [results of] a search of the [USPTO’s] Trademark
Electronic Search System (TESS) for live records that include the term BRAIN in
Class 9 … [and results of a] similar search in Class 28 … submitted as evidence that
the term BRAIN is so commonly used that the public will look to other elements to
distinguish the source of the goods.” (Emphasis added). From this evidence, Applicant
argues that “[d]ue to the contemporaneous use by various unrelated parties of the
term BRAIN in the same or similar fields …, [Registrant’s] Mark is only entitled to a
narrow scope of protection. … Any differences, even minor differences, in either the
marks or the goods or services, will be enough to prevent any likelihood of confusion
among consumers.” (Emphasis Applicant’s).13
There are a number of problems with Applicant’s evidence and its arguments
therefrom. To begin, Applicant’s third-party registration evidence goes not to the
commercial strength of Registrant’s mark, but rather its conceptual strength. That
is, “[u]se evidence may reflect commercial weakness, while third-party registration
evidence that does not equate to proof of third-party use may bear on conceptual
weakness if a term is commonly registered for similar goods or services.” Tao
Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017)

13 Applicant’s Brief, 4 TTABVUE 5-6.
Serial No. 88196936
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(emphasis added) (citing Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ
693, 694-95 (CCPA 1976)). See also In re Guild Mortg. Co., 2020 USPQ2d 10279 *3
(TTAB 2020) (“[E]vidence of third-party registrations is relevant to ‘show the sense
in which . . . a mark is used in ordinary parlance.’”). To the extent Applicant argues
that its third-party registration evidence goes to the commercial strength of the cited
PLAYBRAINS and Design mark, that argument is misplaced.
Specifically, Applicant’s third-party evidence comprises fifty-five (55) non-
duplicative third-party registrations for goods in Class 9 of marks comprising
partially of some form of the root term “BRAIN” (e.g., BRAIN, BRAINZ, BRAINS,
etc.),14 and eighty-two (82) non-duplicative third-party registrations for goods in
Class 28 of marks comprising partially of some form of the root term “BRAIN.”15 We
give low probative value to eighteen (18) Class 9 registrations and six (6) Class 28
registrations issued under Trademark Act Sections 44(e) and 66(a), 15 U.S.C.
§§ 1126(e) and 1141f(a),16 because Applicant provided no evidence that the marks in
these registrations ever were in use in commerce. See Key Chems., Inc. v. Kelite
Chems. Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“[T]here is no evidence
that the[se third-party registered marks] are in continued use. We, therefore, can
give them but little weight.”); see In re Mucky Duck Mustard Co., Inc., 6 USPQ2d

14 Office Action Response of June 24, 2019 at TSDR 26-128, with some identical third-party
registrations submitted twice.
15 Id., at TSDR 130-234, again with some identical third-party registrations submitted twice.
16 Class 9 third-party registrations, Id., at TSDR 27, 29, 34-55, 72-73, 80, 89-90, 93, 98-99,
101-105, 107-116, 122-128; Class 28 third-party registrations, Id. at 132-133, 169-170, 198-
214.
Serial No. 88196936
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1467, 1470, n.6 (TTAB 1988) (registrations issued under Trademark Act § 44 “have
very little, if any, persuasive value” for this purpose).
We give no value to twelve (12) Class 9 and eighteen (18) Class 28 third-party
registrations because the marks are not registered for goods or services similar to
those recited in the PLAY BRAINY Application or PLAYBRAINS and Design
registration.17 Tao Licensing, 125 USPQ2d at 1057; see also In re i.am.symbolic, LLC,
123 USPQ2d at 1751 (disregarding third-party registrations for other types of goods
where the proffering party had neither proven nor explained that they were related
to the goods in the cited registration). Therefore, we give full consideration only to
the thirty-four (34) Class 9 and sixty-one (61) Class 28 third-party registrations for
the purpose Applicant submitted them – to demonstrate the relative conceptual
weakness of BRAIN as a trademark element for goods of the type recited in the cited
Registration and the Application now on appeal.
We also observe that none of the third-party registrations Applicant submitted
are for marks containing both the term PLAY and another element incorporating the
root term BRAIN. Thus, the vast majority of these registrations are for marks that
contain additional textual matter distinguishing them from the PLAYBRAINS and
Design mark. We credit the “[t]hird party registrations … [Applicant submitted as]
relevant to prove that some segment of the composite marks … [here at issue] has a
normally understood and well recognized descriptive or suggestive meaning, leading

17 Class 9 third-party registrations, Id., at TSDR 27, 31, 38-40, 69, 75, 77, 89-90, 98-100, 103-
104, 107-116, 122-128; Class 28 third-party registrations, Id. at 131, 141, 143, 147, 149, 153,
160, 163, 176, 178-179, 183-184, 191-192, 195, 217, 225, 229.
Serial No. 88196936
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to the conclusion that that segment [BRAIN] is relatively weak,” Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015)
(quoting 2 J. T. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION
§ 11:88 (4th ed. 2015)). At most, these third-party registrations show some
suggestiveness in the use of BRAIN in connection with the relevant educational goods
in Classes 9 and 28.18 However, BRAIN as a trademark element is not so weak that
confusion is unlikely as between highly similar marks for overlapping goods and/or
services. Even weak marks are entitled to protection against registration of similar
marks. See In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982).
No evidence has been brought to our attention regarding the conceptual strength
or weakness of the term PLAY, nor the literal portion of Registrant’s PLAYBRAINS
and Design mark as a whole. See In re Nat’l Data Corp., 224 USPQ at 751 (requiring
comparison of the marks as a whole). We find Registrant’s PLAYBRAINS and Design
mark inherently distinctive pursuant to the presumptions provided to registered
marks under Trademark Act Section 7(b), 15 U.S.C. § 1057(b).
B. The Similarity or Dissimilarity and Nature of the Goods and
Services
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods and services of the parties] as related enough to cause confusion

18 Applicant did not call to our attention any third-party registrations purporting to show the
weakness of BRAIN for Registrant’s services in International Class 41.
Serial No. 88196936
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about the source or origin of the … [goods and] services.’” In re St. Helena Hosp., 113
USPQ2d at 1086 (quoting Hewlett-Packard, 62 USPQ2d at 1004).
To determine the relationship between the respective goods and/or services, we
are bound by the Identifications in Applicant’s involved application and the cited
registration. In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997) (“Likelihood of confusion must be determined based on an analysis of the marks
as applied to the [goods or] services recited in applicant’s application vis-à-vis the
[goods or] services recited in [a] …registration, rather than what the evidence shows
the [goods or] services to be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank,
N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987)).
“Likelihood of confusion must be found as to the entire class [of goods identified]
if there is likely to be confusion as to any … [product] that comes within the recitation
of … [goods] in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). For that
reason we need not discuss all of the goods and services in the Application and cited
Registration. We discuss only those goods and services that overlap or are legally
identical, and others for which the Examining Attorney has provided evidence.
The goods and/or services need not be identical or even competitive to find a
likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080,
56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner
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and/or if the circumstances surrounding their marketing are such that they could
give rise to the mistaken belief that [the goods and/or services] … emanate from the
same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant goods and services are used by the same
purchasers; advertisements showing that the relevant goods and services are
advertised together; or copies of use-based registrations of the same mark for both
Applicant’s goods and the goods or services listed in the cited registration. See, e.g.,
In re Davia, 110 USPQ2d at 1817 (finding pepper sauce and agave related where
evidence showed both were used for the same purpose in the same recipes and thus
consumers were likely to purchase the products at the same time and in the same
stores).
As amended in this appeal, Applicant’s goods are “children’s educational toys for
developing fine motor, cognitive, counting and sorting skills; children's educational
toys for developing fine motor, oral language, numbers, counting, colors and alphabet
skills.” Registrant’s goods and services, as recited in the cited Registration, generally
encompass downloadable computer game software, computer games on recorded
media, and providing online computer and video games.
Applicant argues:
Applicant’s Mark is focused on educational and tactile toys for toddlers.
In contrast, the Cited Mark is focused on software products largely
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interacted with by adults. Thus, the Examining Attorney’s evidence that
“children’s educational toys and computer games (which can include
educational games for children) often originate from the same source”
necessarily requires “increasing the level of generality” between the
respective goods. Even if these goods are considered to fall in the same
broad field, it is not enough to form the basis of a finding of a likelihood
of confusion.19
We find these arguments contrary to the weight of the evidence provided by the
Examining Attorney, and contrary to controlling case law as discussed above.
As evidence of relatedness, the Examining Attorney made of record twenty-one
(21) use-based third-party registrations reciting the type goods of the identified in the
PLAY BRAINY Application and the types of goods and/or services identified in the
PLAYBRAINS and Design Registration,20 which we find relevant. Although active
third-party registrations are not evidence that the marks shown therein are in use or
that the public is familiar with them, they nonetheless have probative value to the
extent that they serve to suggest that the services listed therein are of a kind that
may emanate from a single source under a single mark. See, e.g., Joel Gott Wines LLC
v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1432 (TTAB 2013) (finding that third-
party registrations covering both wine and water were probative of the relatedness of
those beverages).
The Examining Attorney also made of record pages from the following websites to
demonstrate that Applicant’s type of goods and Registrant’s types of goods and
services are closely related because children’s educational toys and downloadable,

19 Applicant’s Brief, 4 TTABVUE 12.
20 Office Action of June 28, 2019 at TSDR 48-116.
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recorded and online computer games (which can include educational games for
children) often originate from the same source under the same mark:
 Vtech Baby advertises products “including cuddly plush toys, teethers,
nighttime projectors, bath toys and more, our collection of engaging baby toys
will help your little one reach developmental milestones.”
 Vtech also advertises that they provide “Learning Apps” and “Creativity &
Problem Solving Apps” adjacent to the wording.
 Fisher-Price advertises “with the help of Fisher-Price educational toys,
children can learn important concepts through engaging and interactive play.
Find learning toys that introduce shapes, numbers, letters, animals, and much
more!”
 Fisher-Price also advertises “Online Games. Looking for a special way to
spend time with your child? You’ll find lots of interesting play and learn ideas
here….”
 Leap Frog advertises “Learning Toys for Every Stage. Designed by leading
experts, our learning toys create a foundation for future success by exposing
your child to important skills like vocabulary, letters, emotions and more at an
early age.”
 Leap Frog also advertises online and downloadable games, namely: “Apps
Kids (and Parents!) Love” as well as “Leap Frog Academy…an interactive
learning program filled with 2,000+ engaging games and activities for 3-6 year
olds”.
 Bimi Boo advertises downloadable games as “Our Educational Apps for Kids”.
 Bimi Boo also advertises “Bimi Boo Wooden Toys…Our toys stimulate mental
activity, develop cognitive functions, enhance the imagination and foster
creativity.”
 Tiggly advertises toys and computer applications that are used together
showing “75 manipulatives/unlimited app downloads”.21
 PBS Kids advertises “Learning & Educational Toys” as well as “Games” under
the heading “Apps”.
 Scholastic shows educational games such as reading, hand sign alphabet and
math tile games designated for children by grade-level as well as downloadable
computer application games.

21 The VTech, Fisher Price, Leap Frog, Bimi Boo and Tiggly website pages were made of
record with the Office Action of February 21, 2019 at TSDR 11-84.
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 Smart Games advertises a variety of manipulative toys such as “Smartcar
5x5 Challenge your kids to build a car with 5 different blocks in this unique
logic game.”
 Smart Games also advertises apps such as “The Colour Code app is a fun
game about colors & shapes!” 22
For Applicant’s type of goods and Registrant’s types of goods and services to be
related, it is not necessary that they always emanate from the same source under
the same mark. The fact that are offered together by various third parties is evidence
that “the respective products [or services] are related in some manner and/or ... the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Coach v. Triumph
Learning, 101 USPQ2d at 1722.
Applicant further seeks to distinguish Applicant’s goods from Registrant’s goods
and services by making of record and pointing us to the specimen filed by Registrant
to maintain its registration pursuant to Trademark Act Sections 8 & 15, 15 U.S.C.
§§ 1058 and 1065, showing the mark PLAYBRAINS and Design in use for a “virtual
casino.” Applicant further argues that the typical user of Applicant’s goods, children,
are legally prohibited from gambling.23 Applicant’s evidence and argument along
these lines simply ignores controlling case law. In re Dixie Rests. Inc., 41 USPQ2d at
1534 (Likelihood of confusion is determined based on an analysis of the marks as
applied to the goods or services recited in the application vis-à-vis the goods or

22 The PBS Kids, Scholastic and Smart Games website pages were made of record with the
Office Action of June 28, 2019 at TSDR 10-47.
23 Registrant’s Trademark Act Section 8 & 15 specimen made of record with Office Action
Response of June 24, 2019 at TSDR 236-244. See Applicant’s arguments in Applicant’s Brief
at 4 TSDR 12-13.
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services recited in the registration, rather than what the evidence shows the goods
or services to be.).
We therefore find that the second DuPont factor, the relatedness of the goods as
described in the PLAY BRAINY Application and the goods and services as described
in the PLAYBRAINS and Design registration, supports an ultimate finding that
confusion is likely.
C. The Similarity or Dissimilarity of Trade
Channels and Classes of Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the goods and services as they are identified in the application and the cited
registration. Octocom Sys., Inc. v. Hous. Comp. Servs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987); Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1471 (TTAB 2016). The cited PLAYBRAINS and Design
registration does not contain any limitations as to trade channels or classes of
customers, and we may not read any limitation into them. Squirtco v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). Therefore, while Applicant’s
products are limited to children’s toys, the goods and services of Registrant are
presumed to travel in all channels of trade and offered to the classes of customers
usual for such goods and services. See In re Linkvest S.A., 24 USPQ2d 1716, 1716
(TTAB 1992) (“Registrant’s goods are broadly identified as computer programs
recorded on magnetic disks, without any limitation as to the kind of programs or the
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field of use. Therefore, we must assume that registrant’s goods encompass all such
computer programs including those which are for data integration and transfer.”).
The only evidence relating to the trade channels through which the goods and
services at issue travel is the third-party website evidence submitted by the
Examining Attorney, discussed above. This evidence shows that the type of goods
identified in Applicant’s application, children’s toys, may be offered via the same
virtual marketplace (that is, on the same websites by the same entities) to all relevant
classes of purchasers, i.e., individuals interested children’s toys (Applicant’s type of
goods), downloadable computer game software, online computer games and video
games (Registrant’s types of goods and services). Therefore, the respective goods and
services, as identified, would be provided in the same or at least overlapping channels
of trade to the same or overlapping classes of purchasers. Thus, similarity of trade
channels and prospective purchasers, the third DuPont factor, weighs in favor of a
finding a likelihood of confusion.
D. Conclusion on Likelihood of Confusion
The first, second and third DuPont factors favor finding a likelihood of confusion.
Registrant’s PLAYBRAINS and Design mark as a whole is inherently distinctive, and
Applicant did not provide cognizable evidence to the contrary. As the marks at issue
are similar, the goods and services are related, and the trade channels as well as
classes of purchasers overlap, we find that Applicant’s PLAY BRAINY mark, used in
connection with Applicant’s goods, so closely resembles Registrant’s mark, used in
connection with Registrant’s goods and services, as to be likely to cause confusion,
mistake or deception as to the source of Applicant’s goods.
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Decision
The refusal to register Applicant’s mark PLAY BRAINY on grounds of likelihood
of confusion pursuant to Trademark Act Section 2(d) is affirmed.