TTABlog Test: Are Drinking Game Equipment and Sports Balls Related for Section 2(d) Purposes?

The USPTO refused registration of the mark BREWSKI (in standard characters) for "Equipment sold as a unit for playing drinking games comprised of an apparatus for holding multiple cups," finding confusion likely with the registered mark BREWSKI BROTHERS for "sports balls" [BROTHERS disclaimed]. On appeal, applicant maintained that the marks engender different commercial impressions because BROTHERS is the dominant term in the cited mark, and further that the goods are significantly dissimilar, since sports balls are used "for sports where a ball is essential" but not for drinking games. How do you think this appeal came out? In re P&P Imports LLC, Serial No. 88915014 (May 26, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Marks: The Board found BREWSKI to be the dominant element in the cited mark; the disclaimed term BROTHERS acts as a familial designation having no source identifying significance. Moreover, the first word in the mark is more likely to be impressed upon the minds of consumers. There was no evidence that consumers would focus on the cadence or alliteration of the cited mark. The Board concluded that the marks are "overall very similar."

The Goods: Applicant described its goods as a connected drinking apparatus with cups, for use in a drinking games that allow users to drink in unison. It insisted that "no ball of any kind is used with applicant's goods." Examining Attorney Pauline Ha provided third-party website evidence showing that various entities make, produce, or provide both drinking game equipment and sports balls under the same mark.

The Board observed that "sports balls" would include "ping pong balls" [ed. note: I believe PING-PONG is a registered trademark; should the term "table tennis" be used instead?], and the evidence showed that"ping pong balls" can be used for a variety of games, including drinking "pong" games. According to Wikipedia, beer pong requires a table, plastic cups, and "ping pong balls." Moreover, consumers could purchase applicant's goods and registrant's balls at the same time in order to offer a variety of games at a party.

Channels of Trade: Applicant argued that the channels of trade do not overlap, since sports balls are sold in sporting goods stores, while applicant's goods would be sold by drinkware distributors or novelty party supply stores and alcohol and beverage markets. The Board disagreed. The evidence showed that sports balls may be sold in stores and on websites that offer games, including drinking games.

Conditions of Sale: The Board rejected applicant's argument that the purchasers of its goods would be highly sophisticated and can readily differential between sports balls and a drinking apparatus [Depends on how much brewski had been consumed, I think - ed,]. The Board noted the lack of evidence for that assertion, and also pointed out that it must make its determination on this issued based on the least sophisticated consumer.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: I don't agree with this decision. I think the differences in the marks and the goods leads to a conclusion of no likelihood of confusion. The Board's mechanical approach to the analysis is unconvincing.

Text Copyright John L. Welch 2022.