88673128 (T.T.A.B. Aug. 30, 2021)

Adar Golad

Trademark Trial and Appeal BoardAug 30, 2021

88673128 (T.T.A.B. Aug. 30, 2021)

This Opinion is not a Precedent of the TTAB Mailed: August 30, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Adar Golad _____ Serial No. 88673128 _____ Eric A. LaMorte of LaMorte & Associates, PC for Adar Golad. Hunter Bayliss, Trademark Examining Attorney, Law Office 113, Myriah Habeeb, Managing Attorney. _____ Before Cataldo, Coggins, and Hudis, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, Adar Golad, seeks registration on the Principal Register of the mark BETCHA CAN’T (in standard characters), identifying the following goods: “card games; parlor games; playing cards and card games” in International Class 28.1 1 Application Serial No. 88673128 was filed on October 29, 2019, based on Applicant’s assertion of a bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act. 15 U.S.C. § 1051(b). Applicant subsequently filed an amendment to allege use under Section 1(c) of the Trademark Act, 15 U.S.C. § 1051(c), and asserted November 30, 2019 as a date of first use of the mark anywhere and in commerce under Section 1(a) of the Trademark Act. 15 U.S.C. § 1051(a). Serial No. 88673128 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the registered mark IBETCHA (in standard characters), issued on the Principal Register and identifying the following goods: “card games,” in International Class 28.2 After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. I. Exhibits to Applicant’s Brief Before proceeding to the merits of the refusal, we address an evidentiary matter. Applicant attached nearly 70 pages of exhibits to its appeal brief.3 Trademark Rule 2.142(d) reads as follows: The record in the application should be complete prior to the filing of an appeal. Evidence should not be filed with the Board after the filing of a notice of appeal. If the appellant or the examining attorney desires to introduce additional evidence after an appeal is filed, the appellant or the examining attorney should submit a request to the Board to suspend the appeal and to remand the application for further examination. Any of the attachments to Applicant’s brief that were not submitted during prosecution of the involved application are not timely.4 Any attachments to 2 Registration No. 5171089 issued on the Principal Register on March 28, 2017. 3 4 TTABVUE 16-82. (Applicant’s brief.) Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. 4 The proper procedure for an applicant or examining attorney to introduce evidence after an appeal has been filed is to submit a written request with the Board to suspend the appeal Serial No. 88673128 - 3 - Applicant’s brief that were timely submitted are redundant. Consequently, all evidence timely introduced into the record during prosecution will be considered, and the attachments to Applicant’s brief will be given no consideration. II. Likelihood of Confusion We base our determination of likelihood of confusion under Trademark Act Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019). We have considered each DuPont factor for which there is argument and evidence. Guild Mortg. Co., 129 USPQ2d at 1162-63. Varying weights may be assigned to each DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less weighty roles in any particular determination”). Two key considerations are the similarities between the marks and the relatedness of the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.02 (Jun. 2021) and authorities cited therein. Serial No. 88673128 - 4 - goods and differences in the marks.”); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018). A. The Goods, Channels of Trade, and Classes of Customers The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration.” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014); see also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In this case, Applicant’s “card games; parlor games; playing cards and card games” encompass the “card games” identified in the cited registration. Based on the plain wording of the respective identifications, Applicant’s goods are, in part, literally identical to and encompass the goods identified in the cited registration. See In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). Applicant argues: However, the Board should consider evidence that shows that products do not compete, even though they care [sic] commonly classified. Although the Applicant’s goods and the registrant’s goods are both games, the nature and scope of those games is highly different. The [applicant] makes a game for children. Such a toy is sold in toy stores and in the toy departments of big box stores and on-line retailers. The cited registered mark “ibetcha” is an adult game that is sexually explicit and promoted binge drinking. Such games are not sold in toy Serial No. 88673128 - 5 - stores or in the toy departments of retailers. Rather, since the game is an adult game, the game must be marketed only to adults.5 Applicant’s argument, even if factually accurate, is inapposite. It is long settled that likelihood of confusion is determined on the basis of the goods or services as they are identified in the application and registration at issue . In re FCA US LLC, 126 USPQ2d 1214, 1217 (TTAB 2018); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); In re William Hodges & Co., Inc., 190 USPQ 47, 48 (TTAB 1976); see also Octocom Sys., 16 USPQ2d at 1787 (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed”). An applicant may not restrict the scope of the goods covered in the pleaded registration by argument or extrinsic evidence. See In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). As the Court of Customs and Patent Appeals, the predecessor of the U.S. Court of Appeals for the Federal Circuit, explained in Tuxedo Monopoly, Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981): Here, appellant seeks to register the word MONOPOLY as its mark without any restrictions reflecting the facts in its actual use which it argues on this appeal prevent likelihood of confusion. We cannot take such facts into consideration unless set forth in its application. 5 4 TTABVUE 10; Applicant’s brief. Serial No. 88673128 - 6 - Likewise, in this case, we must also analyze the similarity or dissimilarity and nature of the goods based on the description of the goods set forth in the application and the registration at issue. In other words, we may not limit or restrict the broadly identified “card games” listed in the application and cited registration. Therefore, we must construe these goods as identical.6 Furthermore, because the “card games” in the application and cited registration are identical, there is no need for us to further consider the relatedness of Applicant’s other recited goods with the goods identified in the cited registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly, 209 USPQ at 988 (likelihood of confusion must be found if there is likely to be confusion with respect to any item that comes within the identification of goods or services in the application). The third DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161 (quoting DuPont, 177 USPQ at 567). Because the goods described in the application and the cited registration are in-part identical, we must presume that the channels of trade and classes of purchasers for the “card games” are the same. See 6 For these same reasons, we reject Applicant’s argument that the “conditions under which buyers would buy a child’s game or an adult drinking game are so dissimilar that there is no likelihood of confusion” (4 TTABVUE 11) under the fourth DuPont factor. The limitations upon which Applicant’s arguments are based are not reflected in the respective identifications of goods. Similarly, Applicant’s arguments directed to the ninth through the thirteenth DuPont factors are predicated upon impermissible restrictions to the identifications of goods and are not persuasive. Serial No. 88673128 - 7 - Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in determining likelihood of confusion); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical and in-part related nature of the parties’ goods, and the lack of any restrictions in the identifications thereof as to trade channels and purchasers, these clothing items could be offered and sold to the same classes of purchasers through the same channels of trade”); In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are legally identical, they must be presumed to travel in the same channels of trade, and be sold to the same class of purchasers”). For these reasons, we find unpersuasive Applicant’s arguments that “children’s games are sold in toy stores and in the toy departments of retails. Sexually explicit drinking games are not. There is no similarity or cross-over in likely-to-continue trade channels.”7 Applicant’s arguments seek to impose trade channel limitations that are not present in the respective identifications of goods. We find that the identity in part of the goods, and their presumed overlapping channels of trade and consumers weigh heavily in favor of likelihood of confusion. 7 4 TTABVUE 11. Serial No. 88673128 - 8 - B. Strength of the Cited Mark / Number and Nature of Similar Marks Next, we evaluate the strength of the registered mark and the scope of protection to which it is entitled. The fifth DuPont factor is the strength of the prior mark, and the sixth factor is the number and nature of similar marks in use for similar goods or services. DuPont, 177 USPQ at 567. In determining strength of a mark, we consider both inherent strength, based on the nature of the mark itself, and commercial strength or recognition. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”). We are not persuaded by Applicant’s argument that: There is no indication that the cited registered mark has obtained any degree of fame. The cited mark is for an obscure product in the specialty adult novelty niche. In view of the above, the Board will recognize that this aspect of the DuPont Factors favors the Applicant.8 Applicant’s arguments misapprehend the legal underpinnings of the fifth and sixth DuPont factors. Turning first to inherent strength, there is no evidence of record that the term comprising the mark IBETCHA possesses any but, at most, a slightly suggestive meaning in connection with the identified goods. There is no evidence of third-party use; and there is no evidence of third-party registration of similar marks for related products or services. Cf. Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur 8 6 TTABVUE 10 (Applicant’s brief). Serial No. 88673128 - 9 - Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015). Thus, based on the record before us, the cited mark is inherently distinctive. Applicant asserts in his brief that “Betcha” is a slang conjunction meaning “bet you”. There are 30 live trademark filings in Class 028 that contain the term “Bet”. There are 554 live trademark filings in Class 028 that contain the term. “You”. As such, it can be seen that “bet” and “you” are commonly used terms in the class and that small distinctions are deemed sufficient to warrant trademark registration.9 However, Applicant’s “assertions are unsupported by sworn statements or other evidence, and ‘attorney argument is no substitute for evidence.’”10 In re OEP Enters., Inc., 2019 USPQ2d 309323, *14 (TTAB 2019) (quoting Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (internal quotation omitted)). Further, the cited registration issued on the Principal Register without a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. §1052(f), and we must accord the cited registration the presumption of validity provided for under 9 6 TTABVUE 12. 10 The screenshots from the USPTO’s XSearch Trademark search engine submitted by the Examining Attorney with his August 18, 2020 final Office Action at 12-13 contain only a partial listing of the live applications and registrations consisting in part or whole of the terms “bet you” and “bet” with additional information regarding the terms and designs comprising the marks (e.g., “bet” as part of the word “better”) and no information regarding the Class 28 goods identified thereby. The applications and registrations referenced in this listing are not of record. Mere listings of or references to registrations are not sufficient to make the registrations of record. In re Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012); In re Hoefflin, 97 USPQ2d 1174, 1177 (TTAB 2010). This is far from sufficient evidence of the number and nature of third-party registration of similar marks for related goods and services, or the putative weakness of the cited mark. Cf. Juice Generation, 115 USPQ2d at 1674-75; Jack Wolfskin 116 USPQ2d at 1135-36. Serial No. 88673128 - 10 - Section 7(b) of the Trademark Act, 15 U.S.C. §1057(b). We thus presume that the mark IBETCH is inherently distinctive with no need to acquire secondary meaning. This holds true even if it were deemed suggestive in the context of card games. There is no evidence regarding the mark’s commercial or marketplace strength. In an ex parte appeal, however, the owner of the cited registration is not a party, and the Examining Attorney is under no obligation to demonstrate exposure to or recognition of the cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). For that reason, “in an ex parte analysis of the du Pont factors for determining likelihood of confusion …, the ‘[commercial strength] of the mark’ … is normally treated as neutral when no evidence as to [marketplace recognition] … has been provided.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(d)(ix) (Jun. 2021). Because there is no evidence of record regarding the commercial strength of the cited mark, this consideration is neutral. We find that the registered mark is entitled to the normal scope of protection to which inherently distinctive marks are entitled. See Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (stating that likelihood of confusion fame varies along a spectrum from very strong to very weak). Based upon the totality of the record evidence, we find that the registered mark is inherently distinctive as applied to the identified goods. The fifth and sixth DuPont factors are neutral. Serial No. 88673128 - 11 - C. The Marks Under the first DuPont factor, we determine the similarity or dissimilarity of Applicant’s BETCHA CAN’T mark and the registered IBETCHA mark in their entireties, taking into account their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted. In our comparison of Applicant’s BETCHA CAN’T mark to the registered IBETCHA mark, we consider that, “[w]hen marks would appear on virtually identical goods …, the degree of similarity [of the marks] necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). See also ECI Division of E-Systems, Inc. v. Env’t Commc’ns. Inc., 207 USPQ 443, 449 (TTAB 1980). We find that the dominant feature of Applicant’s BETCHA CAN’T mark is the term “BETCHA.” Because this term appears first in the applied-for mark, it is most likely to be impressed in purchasers’ memories. Presto Prods., Inc. v. Nice-Pak Prods. Serial No. 88673128 - 12 - Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”). It is also the portion of the mark that gives it meaning and action. We find that the dominant portion of the registered IBETCHA mark is also the term “BETCHA” inasmuch as the singular pronoun “I” references and draws additional attention to “BETCHA” as the more distinctive term in the mark.11 Applicant’s BETCHA CAN’T nark is similar in appearance and sound to the IBETCHA mark to the extent that both include “BETCHA” as the most prominent portion thereof. They differ in appearance and sound due to the presence of “CAN’T” in Applicant’s mark and “I” in the registered mark. Nonetheless, we find the marks are more similar in appearance and sound than dissimilar. Applicant argues that “Applicant’s mark and the cited mark are not identical. Nor do the marks have the same pronunciation or rhyme.”12 However, it is not necessary for the marks to be identical, to have common pronunciation or to rhyme in order to find their similarities outweigh their differences. “The proper test is not a side-by- side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721 (internal quotation marks omitted). 11 Applicant acknowledges that in the “cited mark, the “betcha” term can be considered dominant because there is no other word.” 4 TTABVUE 9. 12 6 TTABVUE 9. Serial No. 88673128 - 13 - See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). With regard to meaning or connotation, evidence of record indicates “BETCHA” means “bet you (used to express confidence or certainty that something is the case or will happen);”13 or “a spelling of bet you representing colloquial pronunciation.”14 Applicant argues: “Betcha” is a slang conjunction of “Bet You”. The Applicant’s mark is “Betcha Can’t”, which is the equivalent of “Bet You Cannot”. The cited registered mark is “ibetcha”. Which is the equivalent of “I bet you”.15 We agree with Applicant and the Examining Attorney regarding the meaning of “BETCHA” and the marks. Applicant’s mark means “bet you can’t” and the registered marks means “I bet you.” Used in connection with identical card games, these meanings are closely related, with Applicant’s mark suggesting that a player bets another player cannot perform some action while the registered mark more generally suggests a player betting another regarding an unspecified action. These meanings are quite similar, and lead the marks to have very similar commercial impressions. 13 Examining Attorney’s February 6, 2020 first Office Action at 7. Definition retrieved on the same date from the online OXFORD ENGLISH DICTIONARY accessed at Lexico.com. 14 Examining Attorney’s August 18, 2020 final Office Action at 8. Defin ition retrieved the on same date from the online THE CHAMBERS DICTIONARY accessed at CredoReference.com. 15 4 TTABVUE 9. Serial No. 88673128 - 14 - We acknowledge that the presence of “CAN’T” as the following term in Applicant’s mark differentiates it visually and aurally from the registered mark, which includes “I” before the common term “BETCHA.” These points of distinction, however, do not significantly diminish the strong similarities in connotation and overall commercial impression engendered by these two marks. Similarity in any one of the elements of sound, appearance, meaning, or commercial impression is sufficient to support a determination of likelihood of confusion. See Krim-Ko Corp. v. The Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion”); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to support a holding that the marks are confusingly similar’”) (citations omitted)). Based upon the above analysis, we find that BETCHA CAN’T is more similar than dissimilar to the mark IBETCHA in terms of appearance, sound, connotation, and commercial impression. As a result, consumers encountering BETCHA CAN’T and IBETCHA could mistakenly believe the former is a variation on the registered mark used to identify a particular type of card game as a subset of Registrant’s goods, but nonetheless emanating from a common source. See In re Bay State Brewing Co., 117 USPQ2d at 1961 (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978). For these reasons, we find that the marks are more similar than dissimilar. The first DuPont factor thus also weighs in favor of finding a likelihood of confusion. Serial No. 88673128 - 15 - D. Actual Confusion and Length of Concurrent Use Finally, Applicant argues that there is no evidence of any actual confusion and that there has been concurrent use since November 2019. We do not accord any weight to Applicant’s contention, unsupported by any evidence, that there have been no instances of actual confusion despite contemporaneous use of the respective marks. The Federal Circuit has addressed the question of the weight to be given to an assertion of no actual confusion by an applicant in an ex parte proceeding: With regard to the seventh DuPont factor, we agree with the Board that Majestic’s uncorroborated statements of no known instances of actual confusion are of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self- serving testimony of appellant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion. The opposite is not true, however. The lack of evidence of actual confusion carries little weight, [citation omitted], especially in an ex parte context. In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). Accordingly, while examples of actual confusion may point toward a finding of a likelihood of confusion, an absence of such evidence is not compelling in support of a finding of no likelihood of confusion, particularly in an ex parte proceeding in which the owner of the cited registration cannot appear. Thus, we cannot conclude from the lack of instances of actual confusion that confusion is not likely to occur. The seventh DuPont factor is neutral. Serial No. 88673128 - 16 - E. Conclusion When we consider the record and the relevant likelihood of confusion factors, and all of Applicant’s arguments as well as the Examining Attorney’s arguments relating thereto, we conclude that consumers familiar with registrant’s card games offered under its IBETCHA mark would be likely to believe, upon encountering Applicant’s BETCHA CAN’T mark, that the in-part identical goods originated with or are associated with or sponsored by the same entity. Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d) of the Trademark Act.