Xaviant, LLC

Trademark Trial and Appeal Board

Apr 30, 2012

No. 77820474 (T.T.A.B. Apr. 30, 2012)

Mailed: April 30, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Xaviant, LLC
________

Serial No. 77820474
_______

Nathan P. Suedmeyer, Esq. for Xaviant, LLC

Mayur Vaghani, Trademark Examining Attorney, Law Office 102
(Karen M. Strzyz, Managing Attorney).
_______

Before Holtzman, Lykos, and Kuczma, Administrative Trademark
Judges.

Opinion by Lykos, Administrative Trademark Judge:

Xavian, LLC (“applicant”) filed an application to register
the mark displayed below

for, as amended, “interactive video game devices, comprised of
software and electronic game programs, namely, game cartridges
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77820474
2
and software for operating game controllers on recorded media
and downloadable for delivery digitally to personal computers,
video game consoles, hand held computing devices, mobile
computing devices, and the global computer information network”
in International Class 9, and “entertainment services, namely,
providing information in the fields of production of computer
game software and entertainment via the global computer
information network” in International Class 41.1 The description
of the mark is as follows: The mark consists of a splattered
“X.”
The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d) based on the following two
registrations:
Registration No. 2867060 for the mark X in standard
character format for “video game players; electronic
devices for accessing global computer and communication
networks, namely, computers; computer hardware and
peripherals; computer mice and game controllers; computer
games software; computer software for use in playing video
games and for accessing and browsing global computer and
communication networks; computer software for use in
compressing and decompressing data and video images for
video games and computer games, word text editing; computer
operating system software and utilities for video games and
computer games; user manuals therefor sold as a unit
therewith;” in International Class 9 and

1 Application Serial No. 77820474, filed September 4, 2009, pursuant to
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Color is not
claimed as a feature of the mark.
Serial No. 77820474
3
Registration No. 2693757 for the mark X in standard
character format for “providing on-line chat rooms for
transmission of messages among computer users concerning
video and computer games; providing on-line electronic
bulletin boards for transmission of messages among computer
users concerning video and computer games” in International
Class 38; and “entertainment services, namely, providing
interactive multiplayer game services for games played over
computer networks and global communications networks;
providing computer games and video games downloadable over
computer global communications networks; providing
information on the video game and computer game industries
via the Internet; and providing information on computer
games, video games, video game consoles and accessories
therefor via the Internet” in International Class 41.2

Subsequent to the filing of applicant’s appeal brief,
Registration No. 2867060 was cancelled on March 4, 2011 for
failure to file a Section 8 affidavit.3 In light of the
cancellation of said registration, applicant in its reply brief
has requested that the Class 9 goods in its involved application
be divided and proceed to registration.
For the reasons discussed below, the Board denies
applicant’s request to divide and affirms the refusal to
register as to both classes.
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

2 Registered on March 4, 2003, Section 8 and 15 affidavits acknowledged
and accepted.

3 In view thereof, the Section 2(d) refusal as to Registration No.
2867060 is now moot.
Serial No. 77820474
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Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). We discuss each of the du Pont
factors as to which applicant or the examining attorney
submitted argument or evidence.
First, we consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties as well as the relative strength or weakness of the
registered mark. The question 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 their
entireties that confusion as to the source of the goods or
services offered under the respective marks is likely to result.
The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of
trademarks. In re Jack B. Binion, 93 USPQ2d 1531 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant argues that its applied-for mark is a
“distinctive stylized design” that “creates the appearance of
two crossing slashes made in a northwest-southeast direction and
a northeast-southwest direction” which “present a unique
connotation of slash marks not presented” in the registered
mark. Applicant’s Brief, p. 5. Applicant also contends that
because the consumers of its and registrant’s products are
“sophisticated gamers who are experts in understanding various
Serial No. 77820474
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aspects of video game play and information” (Applicant’s Brief,
p. 5), they will understand the distinction between applicant’s
“splattered design consisting to two cross slashes” and
registrant’s letter “X.” In support thereof, applicant made of
record Internet screenshots of software game titles that include
the letter “X” as the dominant portion of their title (for
example, X-Blade, XBOX, Outpost Kaloki X, Daniel X, Soldner-X 2,
X3 Gold, and Dragon Quest X).
Applicant’s arguments are unconvincing. Applicant’s and
registrant’s marks are legally identical. Contrary to
applicant’s assertions, applicant’s mark consists of the
stylized depiction of the letter “X.” Indeed, this is confirmed
in the record by applicant’s own description of the mark as “a
splattered ‘X.’” Registrant’s mark is the letter “X” in
standard character format. A mark in typed or standard
characters may be displayed in any lettering style; the rights
reside in the wording or other literal element and not in any
particular display. See Trademark Rule 2.52(a). As such,
registrant has the right to use the letter “X” to identify its
goods and services in any type of stylization, including a
manner of display identical to that of applicant’s mark. Thus,
applicant cannot avoid a likelihood of confusion by depicting
its letter “X” mark in a stylized format. See, e.g., Squirtco
v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir.
Serial No. 77820474
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1983) (stating that “the argument concerning a difference in
type style is not viable where one party asserts rights in no
particular display”); In re Melville Corp., 18 USPQ2d 1386,
1387-88 (TTAB 1991); In re Pollio Dairy Prods. Corp., 8 USPQ2d
2012, 2015 (TTAB 1988).
Regarding applicant’s argument that its prospective
consumers are sophisticated and able to discern the differences
in third-party use of “X” marks, we assume that applicant is
relying on the du Pont factor of the relative strength/weakness
of registrant’s mark. Applicant’s evidence of third-party use
is not sufficient to show that the mark is so commonly used that
consumers may be able to distinguish marks incorporating “X”
based on slight differences between them.
In addition, all of the third-party uses consist of the
letter “X” combined with other material; none consist solely of
the letter “X.” This diminishes the probative value of this
evidence. Furthermore, even if we were to assume that
registrant’s mark is weak, even weak marks are entitled to
protection against registration of a confusingly similar mark.
See Giant Food Inc. v. Rosso and Mastracco, Inc., 218 USPQ 521
(TTAB 1982).
In addition to being legally identical in appearance,
prospective consumers will pronounce both applicant’s and
registrant’s marks in the same manner – as the letter “X.” It
Serial No. 77820474
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is well established that similarity in sound alone may be
sufficient to support a finding that the marks are confusingly
similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB
1988); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586
(TTAB 2007). We therefore conclude that the first du Pont
factor weighs in favor of finding a likelihood of confusion.
Next, we consider the goods and services as well as the
channels of trade. At the outset, we note that the goods and
services in question are not identical. However, it is not
necessary that the goods or services be identical or even
competitive in nature in order to support a finding of
likelihood of confusion, it being sufficient that the goods or
services are related in some manner and/or that the
circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
circumstances that would give rise, because of the marks
employed thereon, to the mistaken belief that they originate
from or are in some way associated with the same producer. In
re Home Builders Assn. of Greenville, 18 USPQ2d 1313, 1317 (TTAB
1990).
As noted above, applicant has now requested division of
the Class 9 goods to proceed to registration. Essentially,
applicant contends that because of the cancellation of the
registration for the Class 9 goods, the examining attorney’s
Serial No. 77820474
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refusal as to that Class is now moot. We disagree. As the
record evidence shows, applicant’s “interactive video game
devices, comprised of software and electronic game programs,
namely, game cartridges and software for operating game
controllers on recorded media and downloadable for delivery
digitally to personal computers, video game consoles, hand held
computing devices, mobile computing devices, and the global
computer information network” are indeed related to registrant’s
Class 38 and 42 services, and specifically the provision of
“computer games and video games downloadable over computer
global communications networks.” Within the computer game
software and online computer game industry, such goods and
services are often identical in content. To show the
relatedness of such goods and services in the computer gaming
field, the examining attorney has submitted copies of use-based
third-party registrations, as follows:
Registration No. 3128122 for the mark RYGAR for “computer
game and video game and discs; computer game software and
video game software; mobile communication device software
for use in accessing and playing computer and video games
via wireless medium; downloadable computer programs for
playing computer games and video games via global computer
and communication networks; computer and video game
programs for use with mobile communication devices” in
International Class 9 and “providing wireless games that
may be accessed network-wide by network users;
entertainment services namely providing mobile
communication-based wireless games” in International Class
41;

Serial No. 77820474
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Registration No. 3720041 for the mark BUZZ for “computer
hardware; computer and video game apparatus, namely,
joysticks, control pads, handheld interactive controllers;
computer and video game tapes and cassettes; computer and
video game programs[sic]; computer peripherals; compact
discs, video discs, DVD's; audio and video recordings
featuring computer and video game excerpts and content” in
International Class 9 and “entertainment services, namely,
providing online computer games in International Class 41;

Registration No. 3541738 for the mark BLACKJACK BOWLING for
“computer game software and video game cartridges,
downloadable game software for play via computers and
wireless devices; gaming apparatus, namely, gaming
machines” in international class 9 and entertainment
services, namely, providing on-line interactive computer
games” in International Class 41;

U.S. Registration No. 3613451 for the mark CAFE.COM GOTCHA!
and design for “entertainment software, namely, software
used for providing multi-player access to on-line game
environments; computer game software; video game software;
video game programs; video game cartridges; electronic game
software; electronic game software for use on consoles;
electronic game programs; electronic game cartridges,
downloadable electronic games via the internet and wireless
devices; computer programs for developing other computer
programs and computer programs for assisting developers in
creating program code for use in multiple application
programs” in International Class 9 and “entertainment
services, namely, providing on-line computer games by means
of communications networks; arranging and conducting of
competitions for on-line computer game players” in
International Class 41; and

Registration No. 3033182 for the mark CHAINS OF PROMATHIA
for “computer game software; video game software” in
International Class 9 and “providing on-line computer games
and/or on-line video games; providing information on
computer game strategies and/or video game strategies via
computer networks and/or global communication networks” in
International Class 41.

Third-party registrations have probative value to the extent
that they may serve to suggest that the goods are of a type
Serial No. 77820474
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which may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
In addition, the examining attorney submitted Internet
evidence showing third parties offering for sale computer and
video games in both software and online downloadable form on the
same websites under the same marks. See excerpts from Take-Two
Interactive,
http://ir.take2games.com/phoenix.zhtml?c=86428&p=irol-irhome
and EA Sports, http://aboutus.ea.com/home.action, Denial of
Request for Reconsideration dated November 2, 2010. We find
that this evidence further supports the relatedness of
applicant's computer and video game software and registrant’s
online downloadable computer and video games.
As to applicant’s services identified as “entertainment
services, namely, providing information in the fields of
production of computer game software and entertainment via the
global computer information network” in Class 41, such services
are encompassed by registrant’s more broadly identified and
unrestricted provision of “information on the video game and
computer game industries via the Internet” and provision of
“information on computer games, video games, video game consoles
and accessories therefor via the Internet” in Class 41, such
that they are legally identical. Moreover, because the
services are legally identical and unrestricted, they are
Serial No. 77820474
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presumed to move in the same channels of trade and to be sold to
the same classes of consumers. See Squirtco v. Tomy
Corporation, 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983).
See also In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992)
(because there are no limitations as to channels of trade or
classes of purchasers in either the application or the cited
registration, it is presumed that the services in the
registration and the application move in all channels of trade
normal for those services, and that the services are available
to all classes of purchasers for the listed services).
For these reasons, we find that the second and third du Pont
factors also weigh in favor of finding a likelihood of
confusion.
We now turn to the du Pont factor regarding sophistication
of the purchasers. Applicant argues that because the
prospective consumers of its goods and services are
sophisticated gamers, they are unlikely to be confused into
thinking that applicant’s products and services originate from
or are affiliated with registrant. In support thereof,
applicant points to evidence of “over sixty screenshots of
software games that include the letter X as the dominant[sic]
portion of the software title.” Applicant’s Brief, p. 8.
Applicant maintains that this evidence is probative because it
shows that “gaming consumers are able to distinguish software
Serial No. 77820474
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titles with dominate X wording from other software titles and
gaming platforms which also include dominant X wording.”
Applicant’s reliance on this evidence to show the
sophistication of prospective consumers is misplaced. As
previously discussed above, this evidence relates more to the du
Pont factor regarding the relative strength/weakness of
registrant’s mark. Thus, we do not find this evidence to be of
probative value in demonstrating the sophistication of
prospective purchasers of applicant’s goods and services.
Applicant’s Internet evidence merely shows the existence of
third-party uses of marks identifying software incorporating the
letter “X.” None of the evidence describes or refers to the
nature of the consumer, and the consumer’s ability to discern
the origin of each product.
Inasmuch as the applicant’s and registrant’s identified
goods and services are not restricted to purchase by experts or
any particular class of consumers in the computer software and
gaming industry, we must assume the respective goods and
services would reach all the usual classes of consumers, which
in this case would include ordinary consumers. Such a consumer
is likely to exercise only ordinary care in making purchasing
decisions.
In any event, even if the only consumers are sophisticated
gamers, the fact that they are sophisticated or knowledgeable in
Serial No. 77820474
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a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or
immune from source confusion. See In re Cynosure, Inc., 90
USPQ2d 1644 (TTAB 2009). With essentially identical marks and
related goods and services, even a careful, sophisticated
consumer of such goods is not likely to understand that the
goods emanate from different sources, particularly where, as
here, there is evidence that both types of goods may emanate
from a single source under a single mark. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir. 2000).
Accordingly, the fourth du Pont factor weighs in favor of
finding a likelihood of confusion.
Considering all of the evidence of record, we conclude that
the marks are legally identical; applicant’s goods are highly
related to registrant’s services; and applicant’s services, as
identified, are legally equivalent to registrant’s services such
that they must be presumed to be sold through the same channels
of trade to the same classes of purchasers. To the extent that
there are any other relevant du Pont factors, we treat them as
neutral. Weighing all of the relevant factors, we find a
likelihood of confusion between applicant's mark and the cited
registration.
Decision: Applicant’s request to divide is denied; the
refusal to register pursuant to Section 2(d) is affirmed.