Thursday, February 23, 2006

TTAB Says No-No: "YAYA" 2(d) Opposer Failed to Make Prima Facie Case

Robert J. Thate's Section 2(d) opposition to registration of the marks YAYA and YAYA.COM for computer game software and related Internet services spun briefly, wobbled, and then fell over hopelessly on its side. Thate claimed that the opposed marks would be likely to cause confusion with his YAYA & Design mark (shown below), registered for "toys, namely, spinning tops." Thate v. YaYa, LLC, Oppositions Nos. 91152180 et al. (February 6, 2006) [not citable].

The record in this consolidated proceeding was threadbare: the pleadings, the files of the opposed applications, and a status-and-title copy of Thate's registration. Only Thate, appearing pro se, filed a brief.

The Board found the marks to be similar in sound, appearance, connotation, and commercial impression. The stylization in Thate's mark was seen as "relatively minimal," and the ".COM" portion of Applicant's mark as "hardly sufficient to distinguish the mark from Opposer's mark."

As to the goods and services, because Thate introduced no evidence other than his registration, the similarity therof is determined "solely upon a consideration of the identifications of goods and services in the respective registration and applications." Thate argued in his brief that computer games and spinning tops are both "entertainment products," that both are likely to be marketed on the Internet, and that a large segment of potential customers "will lack the sophistication necessary to discern the differences between the goods and services offered by both parties." Unfortunately for Opposer Thate, his arguments were unsupported by any proof.

"[T]here is no evidence in the record to establish a relatedness between opposer's spinning tops and applicant's computer games offered on the Internet and applicant's Internet services related thereto. Any relationship between the specific goods and services involved herein on which to base a finding of likelihood of confusion is not apparent from the face of the involved registration and applications."

The Board therefore found that Opposer Thate had failed to make out a prima facie case, and it dismissed the oppositions.

Text Copyright John L. Welch 2006.


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