Playboy Bunny Fails to Save GND Logo Mark From Section 2(d) Refusal, Says TTAB

Playboy Enterprises failed to pull a rabbit out of its hat in this appeal from a Section 2(d) refusal of the mark shown below, for various entertainment services including video game-related services. The Board,  however, found the mark likely to cause confusion with the registered mark GND for "provision of Internet website featuring news and information relating to current affairs, business, sports and entertainment."  In re Playboy Enterprises International, Inc., Serial No. 86745640 (March 5, 2018) [not precedential] (Opinion by Judge Albert Zervas).

The Marks: Playboy claimed that its mark "evokes the unique image of video gaming in conjunction with" its Rabbit Head Design, and further that the x-shape in the mark suggest the direction pads of video game controllers. Moreover, the combination of the letters GND with its allegedly iconic Rabbit Head Design purportedly calls to mind Playboy’s history and its association with the phrase “Girl Next Door.” Therefore, confusion would not be likely. The Board was not impressed.

We find that purchasers will give more weight to the letters than the design elements in considering the mark in its entirety, because the letters are large in size, the pentagon-shaped arrows function as a background for each letter, and the “rabbit head design” is not likely to be articulated verbally in this mark.

There was no evidence that the letters GND would be recognized as referring to Applicant Playboy. Furthermore, Playboy's own use of the mark indicates that it intends the letters “G,” “N” and “D” to mean “Gamer Next Door,” not “girl next door.”

Even if consumers perceive the "rabbit head design" as a house mark and GND as a service mark, there still would be likely confusion, since addition of a house mark "does not obviate confusion." Indeed, the Board noted, "this could engender reverse confusion" with registrant's mark.

In sum, the Board found Playboy's mark to be more similar than dissimilar to the cited mark.

The Services: The Board found the services to be overlapping since both applicant and registrant provide a website and registrant's entertainment information may include information about video game tournaments, events, and competitions. Similarly, Playboy's continuing programming about the gaming industry may be identical to the contents of registrant's website. Third-party use and registration evidence confirmed the relatedness of the involved services. The Board presumed that the purchasers and trade channels are the same for the overlapping services.

Conclusion: Confusion is likely, and so the Board affirmed the Section 2(d) refusal.

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TTABlog comment: Not exactly a hare-raising decision.

Text Copyright John L. Welch 2018.