In the blink of an eye, the Commission confirmed the mark’s refusals under Article 2 (d) THE TROPICS for “provision of food and drink; provision of food and drink via a mobile truck; restaurant; catering services ‘(Class 43) and the words + graphic mark below for’ entertainment services in the form of organizing social entertainment events; entertainment services, namely, live music and dance performances; nightclub services, namely, party hosting ‘(class 41). The board considered that the marks were likely to lead to confusion with the registered mark
TROPIXX for various entertainment services, including nightclub services and live performances by musical groups. In re Thomas William Brewer and Mary M. Brewer, Serial Nos. 87503471 and 87504846 (June 4, 2018) [not precedential](Opinion of Judge George C. Pologeorgis).
Marks : The board observed that the word TROPICS is the phonetic equivalent of TROPIXX and concluded that the marks have the same connotation and the same commercial impression. Of course, the verbal part of the words + the mark in the design carries more weight, since this is the part that buyers would use to request services. The word “The” in the trademarks of the applicants has no trademark meaning.
Applicants weakly argued that the “XX” in the cited mark could mean kisses, or the number 20, or an extra large size. Alternatively, the letters PIXX, depending on the applicants, convey the meaning of “image” or “images”. The Commission did not budge, since the applicant did not provide any evidence that consumers would interpret the quoted mark in this way.
The Council concluded that the first du Pont factor supported the refusals.
Services: Applicant’s Class 41 services include “nightclub services” as does the cited recording. “Registration should be refused if there is a risk of confusion as to the services cited in an application. Examining lawyer Anna H. Rosenblatt submitted the third-party recording and used evidence showing that the rest of the Class 41 services are closely related to the services of the registrant.
With respect to the Class 43 services of the applicants, again, third party recordings and evidence of use have shown that these third parties offer services related to the provision of food and drink, and entertainment services under in the form of shows, catering and nightclub services, under the same brand.
Trade channels: As some of the services concerned overlap, the Commission must assume that they travel through the same normal commercial channels to the usual categories of consumers. With respect to non-identical services, evidence from the third party website has shown that these services may be provided in the same market to overlapping customers.
Conclusion: The Commission therefore confirmed the refusal of registration under Article 2 (d).
TTABlog comment: WHY ?
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.