TTAB Reverses 2(d) Refusal of "PLAYER PRIVILEGES" for Casino Services.
So far this year, the Board has affirmed about 90% of the PTO's Section 2(d) refusals on appeal, but here's one that didn't pass muster. The Board reversed a refusal of PLAYER PRIVILEGES for "casino services featuring awards for casino patrons," finding the mark not likely to cause confusion with the identical mark registered for "arranging and planning travel tour packages." In re Lac Du Flambeau Band of Lake Superior Chippewa Indians, Serial No. 76546220 (April 6, 2006)[not citable].
The Examining Attorney argued that "casinos are commonly found in hotels, and that it 'must be assumed that [registrant's services] could include an awards program for frequent casino patronage as well as a host of other possible discount coupons or bonus programs." The Applicant Indians, who run the Lake of the Torches Resort Casino in Lac Du Flambeau, Wisconsin, took issue with the Examining Attorney's logic.
The TTAB sided with the tribe. Observing that the "critical issue in the case is the relatedness of the services," the Board found the PTO's proofs inadequate. The evidence showed that casinos are associated with hotels, that rooms at hotels with casinos can be booked online, and that at one website one may "book your own casino vacation" at various casinos. However, the Board noted that Registrant' services comprise arranging travel tours, and it pointed out that tour packages can be arranged for almost any activity. "It is assumed that companies arrange and plan tours to historical sites, sporting events, cultural activities, and other entertainment activities."
"The simple fact that tours can be arranged to an activity does not establish that services such as casinos, golf, wedding-related services, soccer events, marathons, and museums are related to tour planning services. If that were the case, virtually every activity would be related to tour planning services and there is no evidence that consumers make this broad association." (slip op., p. 6).
The Examining Attorney wandered way off the reservation in arguing that "registrant's services could include providing a casino service such as an awards program for frequent play." The Board found that to be mere speculation. Based on the evidence of record, the Board "could not conclude that there is any significant relation between the services here."
Finally, the Board noted that PLAYER PRIVILEGES is "not an arbitrary or unique term; rather it is a suggestive one and, as such, is afforded a more limited scope of protection."
Therefore, the Board found that confusion would not be likely, and it reversed the refusal to register.
Text Copyright John L. Welch 2006.