Third-Party Registrations and Uses Yield TTAB Reversal of Section 2(d) Refusal
The Board reversed a Section 2(d) refusal to register the mark STADIUM SPORTS BAR & GRILL for “Bar and restaurant services inside of a casino" [SPORTS BAR & GRILL disclaimed], over the registered mark shown below for, inter alia, bar services [EAT • DRINK • SPORTS • GAMES disclaimed]. The services are legally identical (registrant's services encompassed applicant's services) and presumably are offered in the same channels of trade to the same classes of consumers. But in light of the weakness of the formative STADIUM, the Board found the marks sufficiently dissimilar to render confusion unlikely. In re Boyd Gaming Corporation, Serial No. 97838771 (May 14, 2025) [not precedential] (Opinion by Judge Cheryl S. Goodman).
Applicant Boyd Gaming submitted evidence of nine third-party uses of marks containing the word STADIUM for restaurant or bar services, including STADIUM GRILL (Mattoon, IL), STADIUM TAKEOUT (Madison, WI), and THE STADIUM RESTAURANT (New Port Richey, FL). "This third-party use evidences commercial weakness of the term STADIUM."
As for the conceptual strength of the cited mark, Boyd Gaming pointed to nine registrations for marks containing the word STADIUM for restaurant or bar services, including STADIUM PIZZA, STADIUM ON WHEELS, and STADIUM66. The Board found that "STADIUM carries a highly suggestive connotation in the restaurant and bar industry for restaurants or bars that feature sporting events or are located near or in a stadium." This evidence was sufficient to establish the conceptual weakness and highly suggestive nature of the term STADIUM in connection with bar and restaurant services.
In sum, the term STADIUM is conceptually and commercially weak when used in connection with bar and restaurant services, such that consumers are educated to look for minute distinctions in STADIUM-formative marks in the marketplace. “Where a party uses a weak mark, his competitors may come closer to his mark than would be the case with a strong mark without violating his rights.”
Turning to the marks, the Board observed that "[g]enerally, adding subordinate or descriptive matter to a term identical to one in a cited registration does little to obviate a finding of similarity." “However, an exception to the general rule is often found when, inter alia, the matter shared by the two marks is merely descriptive or commonly used or registered.”
The Board concluded that the marks at issue are "sufficiently dissimilar to avoid likelihood of confusion."
Considering the marks in their entireties and in view of the weakness of the cited mark, we find the addition of the terms SPORTS BAR & GRILL in Applicant’s mark and the design elements and additional terms EAT • DRINK • SPORTS • GAMES in Registrant’s mark are sufficient to render the marks distinguishable and dissimilar, even if used on legally identical services.
And so, the Board reversed the refusal to register.
Read comments and post your comment here.
TTABlogger comment: Nine uses and nine registrations doesn't seem like a lot. Who ever heard of STADIUM GRILL in Mattoon, Illinois, which is in the middle of nowhere? And is STADIUM really descriptive of restaurant services?
Text Copyright John L. Welch 2025.