Wednesday, May 30, 2012

TTAB Finds GAME FACE for Sports Masks Confusingly Similar to GAME FACE for Paint Ball Goggles

The Board affirmed a Section 2(d) refusal to register GAME FACE for protective masks for various sports (e.g., baseball, field hockey, and lacrosse), finding the mark likely to cause confusion with the identical mark registered for paintball goggles. Applicant Markwort pointed out that its products would be sold in different sections of "big box" stores than paintball goggles, but the Board still found the goods sufficiently similar to warrant affirmance of the refusal. In re Markwort Sporting Goods Company, Serial No. 77408993 (May 7, 2012) [not precedential].

Registrant's paintball goggles

Of course, with the marks being identical, a lesser degree of relatedness between the goods is necessary to support a Section 2(d) finding. Examining Attorney Katherine S. Chang submitted webpages from three large retailers that offer lacrosse, field hockey, and catcher's masks, as well as paintball googles. She further asserted that the goods "are used in the same way and have the same purpose."

Markwort asserted that the webpages were of limited probative value because "the mere fact that goods can be found in the same stores of a large retailer does not mean the goods are related." For example, the retailers may sell bicycles, treadmills, and trampolines, none of which are related to the goods at issue. Moreover, in its identification of goods Markwort specifically stated that its masks are "incapable of protecting the eyes from liquid contaminants as in paintball activities."

The Board agreed that the PTO's website evidence was not particularly persuasive for the reasons stated by Markwort. It concluded that the PTO had not established that the channels of trade are related, and therefore it considered this du Pont factor to be neutral.

However, given the identity of the marks, only a "viable relationship" between the goods is needed to support the refusal. Here, there is such a relationship: the involved products are identical in function. They protect the user's face and eyes, and consumers would likely consider the goods as emanating from the same source, even if offered in different store sections or on different webpages.

Applicant Markwort's mask

Markwort asserted that "game face" is a common term in sports, but the Board found nothing in the record that weakened the term as a trademark for the involved goods. Finally, Markwort maintained that the goods "can be expensive" and thus more care may be exercised in the purchasing process. Again, the Board was not impressed:

[T]he evidence of record exhibits that a paintball mask costs forty-five dollars and that a lacrosse mask costs eighty dollars. These items cannot be considered as expensive enough to justify heightened care in purchasing decisions. Also, there is no evidence in the record of a high risk of injury in paintball, baseball, lacrosse or other identified sports suggesting that greater care is taken by purchasers in deciding to purchase applicant’s and registrant’s goods.

And so the Board affirmed the refusal to register.

TTABlog note: Compare this decision with In re Hoist Fitness Systems, Inc., Serial No. 76428061 (March 30, 2005) [not precedential] [dumbbells and soccer goals not related for Section 2(d) purposes, despite being sold in the same stores and on the same websites].

Text Copyright John L. Welch 2012.


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