Kansas City Royals Baseball Corporationv.Anschutz Manchester Hockey, LLC

Trademark Trial and Appeal Board

Dec 9, 2008

No. 91163833 (T.T.A.B. Dec. 9, 2008)

Mailed:
Dec. 9, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Kansas City Royals Baseball Corporation
v.
Anschutz Manchester Hockey, LLC
_____

Opposition No. 91163833
to application Serial No. 76510382
filed on April 29, 2003
_____

Jonathan Z. King of Cowan, Liebowitz & Latman, P.C. for
Kansas City Royals Baseball Corporation.

Christopher C. Larkin of Seyfarth Shaw LLP for Anschutz
Manchester Hockey, LLC.
______

Before Quinn, Hairston, and Grendel, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Introduction

In this opposition proceeding, Kansas City Royals
Baseball Corporation is the opposer, and Anschutz Manchester
Hockey, LLC is the applicant.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91163833
2
Applicant seeks registration on the Principal Register
of the mark depicted below:

for goods and services identified in the application as

clothing related to a professional ice hockey
team, namely, t-shirts, hats, baby creepers; and
cloth baby bibs,
in Class 25; and

live entertainment services in the nature of
individuals in cost[ume]1 who appear and perform
at ice hockey games and exhibitions; entertainment
services, namely, professional ice hockey games
and exhibitions; and charitable services, namely,
providing youth hockey instruction, and teaching
children the importance of goal setting and
healthy lifestyles,
in Class 41.2

1 The word “costume” is misspelled as “cost” in the Office’s
automated database. In this opinion, we shall disregard the
misspelling in future quotations of the identification of goods
and services.

2 The application is based on use in commerce under Trademark Act
Section 1(a). June 2001 is alleged in the application to be the
date of first use anywhere and the date of first use in commerce
as to both classes of goods and services.
Opposition No. 91163833
3
Opposer has opposed registration of applicant’s mark,
alleging a claim of priority and likelihood of confusion
under Trademark Act Section 2(d), 15 U.S.C. §1052(d), as its
ground of opposition.3 Specifically, in paragraphs 1-3 of
the notice of opposition, opposer has alleged:

1. Opposer is the owner of the renowned KANSAS
CITY ROYALS MAJOR LEAGUE BASEBALL club.

2. Since long prior to June, 2001, Applicant’s
claimed first use date, Opposer, its affiliates,
licensees and/or sponsors have used trademarks and
service marks comprising a lion with crown
character, alone or with other word, letter or
design elements (collectively, Opposer’s Lion With
Crown Marks), for a sports mascot named SLUGGERRR
used in connection with Opposer’s baseball game
and exhibition services, live entertainment and
charitable services, and a variety of goods and
other services, including, but not limited to,
apparel, novelties, collectibles, sporting goods,
printed matter and toys.

3. Since long prior to June, 2001, Applicant’s
claimed first use date, Opposer and its
predecessors and/or their affiliates, licensees
and/or sponsors have promoted and advertised the
sale and distribution of goods and services
bearing Opposer’s Lion With Crown Marks, including
in connection with baseball game and exhibition
services, live entertainment and charitable
services, and a variety of goods and other
services, including, but not limited to, apparel,
novelties, collectibles, sporting goods, printed
matter and toys, and have sold or distributed such
goods and rendered such services in commerce.

3 In the notice of opposition, opposer also alleged a Section
2(a) “false suggestion of a connection” ground of opposition, but
has presented no argument in support of such ground in its trial
briefs. We therefore deem opposer to have waived that ground and
we shall give it no further consideration.
Opposition No. 91163833
4
Opposer has not pleaded or proven ownership of any
registration pertaining to its pleaded SLUGGERRR mascot
mark, and relies only on its claimed common law rights.
Applicant filed an answer to the notice of opposition
by which it denied the salient allegations thereof.
The evidence of record includes the parties’ pleadings,
and the file of applicant’s involved application. Trademark
Rule 2.122(b), 37 C.F.R. §2.122(b). Both parties presented
evidence at trial.
As its evidence at trial, opposer submitted (1) the
testimony deposition of Byron Shores (who performs as
opposer’s Sluggerrr Mascot), together with opposer’s trial
exhibits OTE 1-7 and applicant’s trial exhibits ATE 1-12
(Shores Test. Depo.);4 (2) the testimony deposition of
Kimberly Hillix Burgess (opposer’s Senior Director of
Marketing), together with opposer’s trial exhibits OTE 8-52
and applicant’s trial exhibit ATE 13 (Burgess Test. Depo.);
(3) opposer’s notice of reliance on portions of the Rule
30(b)(6) discovery deposition of applicant’s President
Jeffrey Eisenberg, and exhibits thereto (Eisenberg Disc.
Depo.); (4) opposer’s notice of reliance (pursuant to
stipulation) on portions of the third-party discovery
deposition of Tom Sapp (President of Real Characters, Inc.,

4 In this opinion, we, as do the parties, shall refer to
opposer’s trial exhibits as “OTE ___” and to applicant’s trial
exhibits as “ATE ___.”
Opposition No. 91163833
5
the designer of Sluggerrr and Max), and exhibits thereto
(Sapp Disc. Depo.); opposer’s notice of reliance (pursuant
to stipulation) on portions of the third-party discovery
deposition of Craig Payne (who performs as applicant’s Max
Mascot), and exhibits thereto (Payne Disc. Depo.); (5)
opposer’s notice of reliance on applicant’s responses to
opposer’s interrogatories and requests for admissions; (6)
opposer’s notice of reliance on printed publications; and
(7) opposer’s rebuttal notice of reliance on portions of the
Rule 30(b)(6) discovery deposition of Kimberly Hillix
Burgess.
Applicant’s evidence at trial consists of (1) the
testimony deposition of applicant’s President Jeffrey
Eisenberg, together with applicant’s exhibits ATE 15-21 and
opposer’s exhibits OTE 55-64 (Eisenberg Test. Depo.); (2)
applicant’s notice of reliance on portions of the Rule
30(b)(6) discovery deposition of Kimberly Hillix Burgess,
and exhibits thereto (Burgess Disc. Depo.); (3) applicant’s
notice of reliance on portions of the Rule 30(b)(6)
discovery deposition of Byron Shores, and exhibits thereto
(Shores Disc. Depo.); (4) applicant’s notice of reliance
(pursuant to stipulation) on portions of the third-party
discovery deposition of Craig Payne, and exhibits thereto;
(5) applicant’s notice of reliance (pursuant to stipulation)

Opposition No. 91163833
6
on portions of the discovery deposition of Tom Sapp, and
exhibits thereto; (6) applicant’s rebuttal notice of
reliance on portions of the Rule 30(b)(6) discovery
deposition of applicant’s President Jeffrey Eisenberg, and
exhibits thereto (Eisenberg Disc. Depo.); (7) applicant’s
notice of reliance on opposer’s interrogatory responses and
requests for admissions; and (8) applicant’s notice of
reliance on official USPTO records.
The case is fully briefed.
After careful consideration of all of the evidence of
record and the arguments of counsel, we find that opposer
has failed to carry its burden of proving that a likelihood
of confusion exists. We therefore dismiss the opposition.

Opposer and its Sluggerrr Mascot
Opposer owns and operates a Major League Baseball
professional baseball team, the Kansas City Royals, located
in Kansas City, Missouri (hereinafter “the Royals,” or
“opposer”). The Royals’ primary business is providing
entertainment services in the nature of a professional
baseball team which competes in Major League Baseball games
and exhibitions. (Burgess Test. Depo. at 15.)
Like many other professional sports teams, the Royals
have an official team mascot. The Royals’ team mascot is
“Sluggerrr,” an anthropomorphized lion character with a
Opposition No. 91163833
7
crown formed as the top of his head, who wears a replica of
the team’s Royals baseball uniform (see depictions below).
Opposer adopted and began using its Sluggerrr mascot mark in
1996. (Burgess Test. Depo. at 28.)
Generally, like other professional sports team mascots,
Sluggerrr serves as and is recognized as the public face of
his team, a friendly character who personifies and promotes
the team, serves as a liaison between the team and its fans
(especially children), and serves as the team’s goodwill
ambassador to the community. He is an “extension” of the
team. (Burgess Test. Depo. at 31-37; Shores Test. Depo. at
14-15.)
Opposer uses its Sluggerrr mascot mark as a live
costumed character and also in various two-dimensional
photographic and cartoon depictions of the live costumed
character. Examples of Sluggerrr appearing in costume as a
live mascot character wearing a Royals baseball uniform are
depicted in the following photographs:
Opposition No. 91163833
8

(OTE 20; OTE 12.)
Although not depicted in these photographs, the record
establishes that Sluggerrr’s costume also includes the name
SLUGGERRR appearing on the back of his jersey in capital
letters, in the same manner as a Royals player’s name would
appear on the back of the team’s baseball jersey. (Shores
Disc. Depo. at 53; Shores Test. Depo. at 110-111; ATE 9.)
Opposition No. 91163833
9
When appearing as a live costumed character, Sluggerrr
engages in the activities in which sports team mascots
typically engage. He entertains the crowd at Royals
baseball games and exhibitions. (Shores Test. Depo. at 17-
22.) He entertains children as the “silent spokesman” of
the Royals’ youth fan club, the Blue Crew. (Shores Test.
Depo. at 77-78.) In the past, he has performed in costume
as Sluggerrr at other teams’ games together with the other
teams’ mascots (including occasional (fewer than ten)
appearances at professional ice hockey games prior to 2001).
(Shores Disc. Depo. at 17, 20.) He has appeared in costume
with other sports team mascots at various other sports
events such as Major League Baseball All-Star games, at
mascot competitions, and at charitable events. (Shores
Test. Depo. at 26-52, 59-62.) He makes personal appearances
in the Kansas City, Missouri area and in surrounding states
to promote the team and opposer’s baseball entertainment
services. (Burgess Test. Depo. at 86-95; Shores Test. Depo.
at 74-75.) He makes personal appearances in the Kansas City
area on behalf of the team at events like store grand
openings to promote local businesses who are sponsors of the
team. (Burgess Test. Depo. at 78-80; Shores Test. Depo. at
71-72.) He makes personal appearances on behalf of the team
at private events such as birthday parties, weddings and
corporate parties. (Id.) He appears and represents the
Opposition No. 91163833
10
team at community events such as parades and fun runs.
(Id.) Serving as the goodwill ambassador of the team, he
also appears at charitable events in the community,
including visits to hospitals and to local schools where he
participates in educational activities such as teaching
children the dangers of drugs. (Shores Test. Depo. at 15-
16, 69-70; Burgess Test. Depo. at 80-86.)
At all of his appearances as a live character, whether
at opposer’s baseball games, at other sports events, or at
personal appearances in the community, Sluggerrr always
wears his Royals uniform, or at least the uniform jersey
bearing the “Royals” script on the chest and his name
SLUGGERRR on the back. (Burgess Disc. Depo. at 26-27;
Shores Test. Depo. at 15-16, 91-92, 124; opposer’s answers
to applicant’s Requests for Admissions Nos. 27-28, 30-36.)
He has never appeared without other word, design, and letter
elements, i.e., as a “naked” lion. (Burgess Disc. Depo. at
35.)5
On this point, opposer contends that Sluggerrr’s jersey
is not always visible during Sluggerrr’s public appearances
at games and at schools. On this record, however, we find
that such occasions are de minimis. Occasionally at
opposer’s baseball games (as few as five times per year

5 Thus, opposer’s allegation in the notice of opposition that it
uses “trademarks and service marks comprising a lion with crown
Opposition No. 91163833
11
(Shores Test. Depo. at 111)), Sluggerrr engages in between-
inning skits for which he dons other costumes which obscure
his Royals jersey (such as Luke Skywalker, or a karate
outfit). (Burgess Test. Depo. at 54-61; Shores Test. Depo.
at 17-24; OTE 1.) However, he wears these other costumes
only for a short time, and always otherwise wears his Royals
uniform. (Shores Test. Depo. at 91-92.) Even when he is
wearing these other costumes and the name SLUGGERRR on the
back of his jersey is obscured, opposer intends for him to
be recognized, and he is recognized, as being Sluggerrr.
(Shores Test. Depo. at 92.)
Likewise, when Sluggerrr appears at schools, he always
arrives in full costume. (Shores Test. Depo. at 16-17, 126-
27). He stays in full costume when other of opposer’s
employees are there to speak to the children. (Burgess
Disc. Depo. at 249). Mr. Shores, the man who wears the
Sluggerrr costume, testified that when he appears alone at
schools and speaks to the children himself, he will remove
the lion head so he can speak. (Shores Test. Depo. at 17.)
He testified that he sometimes also removes the upper part
of the costume, including the Sluggerrr jersey. (Id.)
However, his testimony on this last point is vague, and at
best it indicates that such occasions are de minimis. And
even when he takes the jersey off, he intends to be

character, alone or with other word, letter or design elements”
Opposition No. 91163833
12
recognized and is recognized as being Sluggerrr. (Shores
Test. Depo. at 126-27.)
In short, and contrary to opposer’s contention, we find
that the occasions in which Sluggerrr appears in public
without his “Royals” jersey with the SLUGGERRR name on the
back are de minimis.
Sluggerrr does not wear and has never worn another
sports team’s uniform or jersey. (Shores Test. Depo. at 89-
90.) He has never worn a hockey jersey. (Shores Test.
Depo. at 114.) He has never worn a uniform or jersey
depicting the letter “M.” (Shores Test. Depo. at 123-24.)
The letter “M” has no significance in relation to the
Royals, to Kansas City, or to Sluggerrr himself. (Id.;
Burgess Test. Depo. at 230-31.)
In addition to the live costumed character who appears
as Sluggerrr at games and in the community, opposer uses
various two-dimensional cartoon depictions of its Sluggerrr
mascot mark. These cartoon marks are used on the Royals’
marketing and promotional literature, on stadium signage, on
collateral goods like clothing, and in similar ways. In
three of these cartoon versions of the Sluggerrr mascot
mark, he is depicted in a Royals baseball uniform in
baseball action poses (OTE 15):

is unproven with respect to the claimed use of a lion “alone.”
Opposition No. 91163833
13

Another cartoon version of the mark depicts Sluggerrr, in a
Royals jersey and holding a baseball, in a circle bearing
the words “Kansas City Royals” (OTE 15):
Opposition No. 91163833
14

Another two-dimensional version of the mark (upon which
opposer especially relies in this case) is the following
cartoon depiction of Sluggerrr, in the “open arms” pose.

Opposer uses this “open arms” cartoon depiction of Sluggerrr
as a trademark and service mark on items such as game
Opposition No. 91163833
15
scorecards (OTE 44), t-shirts (OTE 32), popcorn tubs (OTE
33), kids’ collector cards (OTE 17), applications and
newsletters for the Blue Crew youth fan club (OTE 19, 20,
22), a print advertisement for a Sluggerrr birthday party
(OTE 41), a “kids corner” section and birthday advertisement
in opposer’s Gameday Magazine (OTE 42), fan club
advertisements in opposer’s Yearbook (OTE 43), and brochures
advertising Sluggerrr’s availability for personal
appearances (OTE 11). In all of these uses of the “open
arms” cartoon depiction of Sluggerrr, the name “Sluggerrr”
prominently appears in close conjunction with the cartoon.
As is apparent, in each of these various cartoon
renderings of Sluggerrr, as with the live costumed
character, other of opposer’s marks appear, such as the
“Royals” script logo on the baseball uniform jersey, the
“KC” logo on the uniform sleeve, or the “Kansas City Royals”
wording in the circle mark.6 As with the live costumed
character, in none of these cartoon depictions of the mark
does Sluggerrr wear another team’s uniform or jersey, nor
does the letter “M” appear.
As discussed more fully below, we agree with opposer’s
contention that each of these manifestations and depictions
of Sluggerrr, as a live costumed character and in his

6 On clothing and other goods sold to the public which bear these
licensed cartoon marks, the official Major League Baseball logo
also appears. (Burgess Test. Depo. 42-44; OTE 15.)
Opposition No. 91163833
16
various cartoon versions, inform and reinforce the other
depictions and that together they are perceived as a single,
unitary mark, i.e., the Kansas City Royals team mascot,
Sluggerrr.

Applicant and its Max Mascot
Applicant, Anschutz Manchester Hockey, LLC, provides
entertainment services in the nature of a professional ice
hockey team, the Manchester Monarchs, located in Manchester,
New Hampshire (hereinafter “the Monarchs,” or “applicant”),
which competes in professional ice hockey games and
exhibitions. The Monarchs are a minor league affiliate of
the Los Angeles Kings, of the National Hockey League.
(Eisenberg Test. Depo. at 22-25, 46.)
In 2001, applicant adopted and began using an official
team mascot, an anthropomorphized lion named “Max.”
(Eisenberg Test. Depo. at 48.) He wears a crown, and a
shirt or jersey depicting an “M” with a crown. Max is
depicted in the drawing in applicant’s application for
registration as follows:

Opposition No. 91163833
17

Max, like Sluggerrr and other professional sports team
mascots, is an “animated personification of the team”
(Eisenberg Test. Depo. at 38), serving as a promotional and
marketing vehicle for the team, as a liaison between the
team and its fans (especially children), and as the team’s
goodwill ambassador to the community. (Id; Eisenberg Disc.
Depo. at 123-129.) Like Sluggerrr and other mascots, Max is
an extension of his team.
Applicant uses its Max mascot as a live costumed
character who appears at applicant’s ice hockey games and in
the community. Applicant also uses various two-dimensional
depictions of the live costumed character, including the
“open arms” pose depicted in applicant’s application
drawing, on marketing materials, clothing and other items.
Opposition No. 91163833
18
As a live costumed character, Max engages in the usual
activities of sports team mascots. He entertains the crowd
at applicant’s ice hockey games. (Payne Disc. Depo. at 15-
18.) He appears at events and activities involving
applicant’s youth fan club, the Monarch Kids Club.
(Eisenberg Disc. Depo. at 173). Occasionally in the past he
has been joined at applicant’s games by the mascots of other
professional sports teams, including the mascot of a local
minor league baseball team. (Payne Disc. Depo. at 32-33.)
He occasionally has appeared with other sports team mascots
at their games, including appearances at minor league
baseball games with the baseball team’s mascot. (Payne
Disc. Depo. at 26-29.) He makes personal appearances in the
Manchester, New Hampshire community to promote the team.
(Payne Disc. Depo. at 36-40; OTE 25.) These include events
such as private birthday parties and store grand openings.
(Eisenberg Disc. Depo. at 216-218.) They also include
appearances at community events and venues such as parades
and fairs, at community centers such as the Boys and Girls
Club, at schools, and at hospitals. (Payne Disc. Depo. at
36-45; OTE 25.) Additionally, he has appeared at various
charity functions such as Breast Cancer Walks and at events
to benefit organizations like the March of Dimes and the
Special Olympics. (Id.; Eisenberg Disc. Depo. at 216-218.)
All of these are the same types of events and venues at
Opposition No. 91163833
19
which other sports team mascots appear, including baseball
team mascots like Sluggerrr. (Payne Disc. Depo. at 39-40,
43-44.) Max wears his “M” jersey when appearing in public.
(Payne Disc. Depo. at 48-49.)
Applicant also uses the two-dimensional “open arms”
cartoon version of Max (as depicted in applicant’s
application) on applicant’s promotional literature,
including materials associated with applicant’s youth fan
club, the Monarch Kids Club. (Eisenberg Test. Depo. at 56-
57, 106-108; OTE 20, 58-60; applicant’s Response to
opposer’s Request for Admissions No. 2, and Exh. 2 to
applicant’s Responses to opposer’s Second Request for
Admissions.) This cartoon mark also is used on collateral
goods like clothing.

Opposer’s Standing and Priority
Initially, we find that opposer has proven that it owns
and uses its SLUGGERRR mascot mark in connection with its
pleaded goods and services, and that opposer’s first use of
its mark was in 1996, prior to applicant’s claimed first use
of its MAX mascot in 2001. Accordingly, we find that
opposer has standing to oppose, and that it has Section 2(d)
priority based on its prior common law use of its pleaded
mark. Applicant has conceded as much. (Applicant’s trial
brief at 1-2.)
Opposition No. 91163833
20

Likelihood of Confusion
To prevail on its Section 2(d) ground of opposition,
opposer also must prove that there is a likelihood of
confusion, i.e., that applicant’s use of its MAX mascot mark
in connection with the goods and services identified in the
application is likely to cause confusion vis-à-vis opposer’s
prior common-law use of its SLUGGERRR mascot mark in
connection with opposer’s goods and services.
Our likelihood of confusion determination under Section
2(d) is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue (the du Pont factors). See In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005); In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).

Comparison of the Goods and Services, Trade Channels, and
Purchasers

We begin our analysis with the second and third du Pont
factors, which require us to determine the similarity or
Opposition No. 91163833
21
dissimilarity of the parties’ respective goods and services
on or in connection with which the parties’ mascot marks are
used, the trade channels in which those goods and services
are marketed, and, relatedly, the purchasers to whom the
goods and services are marketed.
It is settled that it is not necessary that the goods
or services be identical or even competitive in order to
find that the they are related for purposes of our
likelihood of confusion analysis. That is, the issue is not
whether consumers would confuse the goods or services
themselves, but rather whether they would be confused as to
the source of the goods or services. See In re Rexel Inc.,
223 USPQ 830 (TTAB 1984). It is sufficient that the goods
or services be related in some manner, or that the
circumstances surrounding their use be such, that they would
be likely to be encountered by the same persons in
situations that would give rise, because of the marks used
thereon, to a mistaken belief that they originate from or
are in some way associated with the same source or that
there is an association or connection between the sources of
the respective goods or services. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991); and
In re International Telephone & Telegraph Corp., 197 USPQ
910 (TTAB 1978).
Opposition No. 91163833
22
At the outset, we note that opposer in this case is
relying solely on its common law rights in its Sluggerrr
mascot mark, which extend only to those goods and services
on or in connection with which opposer actually has made
common law use of Sluggerrr, i.e., goods and services
connected to opposer’s professional baseball team.
Applicant’s goods and services, as identified in the
application, are:

clothing related to a professional ice hockey
team, namely, t-shirts, hats, baby creepers; and
cloth baby bibs,
in Class 25;

and

live entertainment services in the nature of
individuals in costume who appear and perform at
ice hockey games and exhibitions; entertainment
services, namely, professional ice hockey games
and exhibitions; and charitable services, namely,
providing youth hockey instruction, and teaching
children the importance of goal setting and
healthy lifestyles,
in Class 41.

We begin with the services identified in the
application as “entertainment services, namely, professional
ice hockey games and exhibitions.” The record establishes
that opposer, for its part, renders entertainment services
in the nature of a professional baseball team which competes
in Major League Baseball games and exhibitions. Under the
second du Pont factor (similarity or dissimilarity of the
services), we find that applicant’s services and opposer’s
Opposition No. 91163833
23
services are similar, generally, in that they both are
entertainment services in the nature of professional sports
teams. However, the parties’ professional sports team
entertainment services are dissimilar to the extent that
they involve two different teams in two different sports,
ice hockey and baseball. There is no evidence that opposer
or any other Major League Baseball team operates or has any
source or licensing affiliation with a professional ice
hockey team. There is no evidence that any professional ice
hockey team operates or has a source or licensing
affiliation with a Major League Baseball team. On balance,
we find that the parties’ professional sports team
entertainment services are similar and related, at a general
level. But we do not disregard the fact that, at a more
specific level, the parties operate two different teams, in
two different sports. In sum, we find that the second du
Pont factor weighs slightly in favor of a finding of
likelihood of confusion as to applicant’s “entertainment
services, namely, professional ice hockey games and
exhibitions.”
Under the third du Pont factor (similarity or
dissimilarity of trade channels), we find that the
purchasers and trade channels for the parties’ respective
professional sports team entertainment services are the same
or overlapping. Initially, we presume, for purposes of this
Opposition No. 91163833
24
proceeding and in view of applicant’s geographically
unrestricted application, that applicant’s hockey team could
relocate to Kansas City and thus share the same fan base and
the same media market as opposer’s team.
We find that the normal trade channels in which
applicant’s sports entertainment services could be marketed
encompass the trade channels in which opposer markets its
services. These include television, radio and print
advertising, television and radio broadcasts of their games,
Internet websites, co-promotions with other local teams and
businesses, and promotional and charitable appearances in
the community by their mascots.
Likewise, we find that the purchasers and prospective
consumers of the parties’ respective baseball team
entertainment services and ice hockey team entertainment
services are overlapping. The primary purchasers of the
parties’ respective sports team entertainment services are
likely to be sports fans, both adults and children. The
evidence establishes that baseball fans may also be hockey
fans, especially when the two teams are in the same
geographic area. For example, applicant’s president Mr.
Eisenberg testified that fans of applicant’s Manchester, New
Hampshire hockey team also are likely to be fans of Major
League Baseball’s Boston Red Sox. (Eisenberg Test. Depo. at
46-47, 78-79.) In addition to sports fans, we find that to
Opposition No. 91163833
25
the extent that the parties promote and market their sports
entertainment services by having their mascots make personal
appearances in the community, the services are likely to be
encountered by the same types of purchasers, including
general consumers and children.
For these reasons, we find that the parties’ trade
channels and purchasers are overlapping, and that the third
du Pont factor therefore weighs in favor of a finding of
likelihood of confusion as to applicant’s “entertainment
services, namely, professional ice hockey games and
exhibitions.”
We turn next to applicant’s services recited in the
application as “entertainment services in the nature of
individuals in costume who appear and perform at ice hockey
games and exhibitions.” Opposer’s Sluggerrr mascot appears
and performs primarily at opposer’s professional baseball
games and exhibitions. The parties’ services therefore are
generally similar to the extent that they both involve in-
game mascot entertainment services. Moreover, the evidence
establishes that mascots for local professional baseball
teams have appeared with Max at applicant’s ice hockey
games, and that Max has appeared with the baseball team
mascots at their baseball games. The record also
establishes that up until 2001 (when Kansas City’s minor
league hockey team, the Blades, folded), Sluggerrr
Opposition No. 91163833
26
occasionally (no more than ten times) appeared and performed
at ice hockey games as well.
Based on these facts, we find that applicant’s in-game
mascot entertainment services are similar and related to
opposer’s mascot entertainment services. We also find that
the parties market and render their mascot entertainment
services in the same trade channels, to the same consumers,
including sports fans and others attending the parties’
games. The second and third du Pont factors weigh in favor
of a finding of likelihood of confusion as to applicant’s
services recited as “entertainment services in the nature of
individuals in costume who appear and perform at ice hockey
games and exhibitions.”
Next, applicant’s recitation of services includes
“charitable services, namely, providing youth hockey
instruction, and teaching children the importance of goal
setting and healthy lifestyles.” As written, we read this
recitation of services to encompass two types of charitable
services, i.e., “youth hockey instruction” and “teaching
children the importance of goal setting and healthy
lifestyles.”
There is no evidence that opposer provides youth hockey
instruction services, or sports instruction services for any
sport, including baseball. We find that the second and
Opposition No. 91163833
27
third du Pont factors weigh against a finding of likelihood
of confusion as to applicant’s “youth hockey instruction.”
Applicant’s recited charitable services also include
“teaching children the importance of goal setting and
healthy lifestyles.” The record establishes that opposer
provides essentially the same charitable and educational
services. We therefore find that applicant’s and opposer’s
charitable and educational services are similar. We also
find that these charitable services of the parties’ would be
rendered in the same trade channels, such as schools and
community centers, and to the same consumers, such as
children, their teachers, and their parents. We therefore
find that second and third du Pont factors weigh in favor of
a finding of likelihood of confusion as to applicant’s
“teaching children the importance of goal setting and
healthy lifestyles.”
Finally, applicant seeks registration of its mark for
goods identified in the application as “clothing related to
a professional ice hockey team, namely, t-shirts, hats, baby
creepers; and cloth baby bibs.” The record establishes that
opposer, for its part, uses its two-dimensional Sluggerrr
cartoon marks, including the “open arms” cartoon mark, on
clothing items including hats and t-shirts. We find that
the parties’ goods are similar to that extent.
Opposition No. 91163833
28
Moreover, we are not persuaded by applicant’s argument
that the goods are dissimilar because applicant’s clothing
items specifically are identified as being “related to a
professional ice hockey team.” We find that this purported
limitation or restriction fails to distinguish the parties’
goods for purposes of the second du Pont factor. Nothing in
the record establishes that there is a separate genus
comprising t-shirts and hats “related to a professional ice
hockey team.” Applicant’s argument might be more persuasive
if applicant’s goods were identified as “hockey jerseys” or
other items which in fact are specifically related to ice
hockey, but they are not so identified. Likewise, there is
nothing about applicant’s mark itself which depicts ice
hockey specifically, or an ice hockey team.
For these reasons, we find that the parties’ Class 25
goods are similar and indeed legally identical,
notwithstanding the purported limiting language in
applicant’s identification of goods. The second du Pont
factor weighs in favor of a finding of likelihood of
confusion as to applicant’s Class 25 goods.
We also find that applicant’s and opposer’s respective
clothing goods would move in the same types of trade
channels such as local sporting goods or other retail
stores, and that they would be marketed to the same classes
of purchasers, primarily the teams’ fans but also to general
Opposition No. 91163833
29
consumers. Accordingly, the third du Pont factor weighs in
favor of a finding of likelihood of confusion, as to
applicant’s Class 25 goods.
In summary as to the second and third du Pont factors,
we find that the parties’ goods and services, trade channels
and purchasers generally are similar and overlapping to the
extent that Sluggerrr and Max both are professional sports
team mascots, who serve the same purposes and engage in the
same types of mascot-related activities for their respective
teams. Like all professional sports team mascots, Sluggerrr
and Max are extensions of their teams. As summarized
earlier in this opinion, each serves as a marketing and
promotional tool for his team, primarily by entertaining
fans and customers (and potential fans and customers) at the
team’s sports events and by making personal appearances in
the community on behalf of the team at both public and
private events. Each also serves as the team’s
representative and goodwill ambassador to the community by
making personal appearances on behalf of the team in
connection with various charitable and educational
activities.
Based on the general similarities in the parties’ goods
and services, we find that the second and third du Pont
factors weigh generally in favor of a finding of likelihood
of confusion in this case. However, in making this general
Opposition No. 91163833
30
finding, we keep in mind that, at a more specific level, the
parties’ mascot-related goods and services are marketed in
connection with two different professional sports teams, in
two different sports (baseball and ice hockey), as to which
there is no evidence of common team ownership, mascot cross-
licensing, or other source affiliation. As stated at the
outset of this discussion, opposer is limited to its common
law rights which extend only so far as those goods and
services on or in connection with which opposer actually has
made common law use of Sluggerrr, i.e., goods and services
specifically connected to opposer’s baseball team.

Conditions of Purchase
Under the fourth du Pont factor, we consider evidence
pertaining to the conditions of purchase for the goods and
services, including the sophistication of purchasers and the
care with which the purchasing decisions would be made.
In general, the record shows that the primary consumers
of goods and services related to a professional sports team
are the fans of that team. (Eisenberg Test. Depo. at 66-
69.) We specifically find that the consumers of opposer’s
and applicant’s mascot-related goods and services primarily
are fans of their respective teams, both adults and kids
(including members of each team’s youth fan club). These
fans are likely to be familiar with their team’s mascot and
Opposition No. 91163833
31
well aware of the source of the team’s mascot-related goods
and services. Opposer made this very contention to the
Office in 1997 when it was attempting to register SLUGGERRR
as a word mark for its newly-adopted mascot. Responding to
a Section 2(d) refusal, opposer contended that “[t]he
Examiner must consider that those who will purchase
Applicant’s goods are fans of the Kansas City Royals
baseball club and are thus well-aware of the Club’s marks
and mascot.” (July 24, 1997 response to Office action in
Application Serial No. 75133245, made of record here by
applicant’s notice reliance.) We agree, and find that these
knowledgable fans, both adults and children, know who
Sluggerrr is and recognize him by his “Royals” baseball
uniform. As discussed below, they would not be likely to
think that a lion wearing an “M” jersey is Sluggerrr, or
that he would have anything to do with the Royals.
At page 17 of its reply brief, opposer argues that

…Applicant has no evidence to support its
speculation that “team jerseys” will always
distinguish the parties’ mascot marks. A child at
a parade or an attendee at a grand opening where
Applicant’s Mascot appears is not necessarily a
knowledgable fan seeking out his or her favorite
team, but simply a passive consumer confronting a
mascot mark confusingly similar to Opposer’s
Mascot mark. Such circumstances are rife with
potential for confusion.”

We find that it is opposer, not applicant, that is engaging
in speculation here. As noted above, whenever Sluggerrr
Opposition No. 91163833
32
appears in public, including appearances at a parade or a
store grand opening, he always wears at least his “Royals”
jersey with his name SLUGGERRR on the back. He does not and
would not wear an “M” jersey. Opposer’s argument, which is
based on the alleged perceptions of a “passive consumer,”7
is too speculative and hypothetical to serve as a basis for
finding that there is a likelihood, as opposed to a mere
possibility, of confusion. “[The Board] is not concerned
with mere theoretical possibilities of confusion, deception
or mistake or with de minimis situations but with the
practicalities of the commercial world with which the
trademark laws deal.” Electronic Design & Sales, Inc. v.
Electronic Data Systems Corp., 954 F.2d 713, 21 USPQ2d 1388,
1391 (Fed. Cir. 1992).
For these reasons, we find that the fourth du Pont
factor does not weigh in favor of a finding of likelihood of
confusion in this case, but rather is neutral in our
analysis.

Comparison of the Marks
We turn next to the critical first du Pont factor,
under which we determine the similarity or dissimilarity of

7 Moreover, it is doubtful that opposer’s hypothetical (and
arguably oxymoronic) “passive consumer” is even a relevant
purchaser of the parties’ goods and services, for purposes of our
likelihood of confusion analysis.

Opposition No. 91163833
33
the parties’ marks when viewed in their entireties in terms
of appearance, sound, connotation and commercial impression.
Palm Bay Imports, Inc., supra.
Before we compare the parties’ marks, we first must
determine just what opposer’s mark is, for purposes of the
comparison. As noted above, opposer does not own a
registration, and therefore is entitled to base its
likelihood of confusion claim only on its common law rights
in, and its actual manner of usage of, its mascot mark.
As discussed above, we agree with opposer’s contention
that its Sluggerrr mascot mark, though used both as a live
costumed character and in various two-dimensional cartoon
forms, is a single, unitary mark, i.e., the mascot
Sluggerrr. Each of the different depictions and
manifestations of the mark informs and reinforces the
others.
For obvious reasons in this case, opposer’s argument on
the issue of the similarity of the parties’ marks is based
most heavily (if not exclusively) on a comparison of
opposer’s “open arms” cartoon rendering of Sluggerrr and the
“open arms” cartoon rendering of Max depicted in applicant’s
application:

Opposition No. 91163833
34

Opposer contends that this “open arms” cartoon depiction of
Sluggerrr is its “primary” mascot mark.
We disagree. We cannot conclude on this record that
opposer uses this “open arms” cartoon version of the mark
any more frequently than the others. Moreover, we find that
if there can be said to be a “primary” Sluggerrr mark, it is
the live costumed character who performs in public; the live
costumed character is Sluggerrr. All of the cartoon
versions of Sluggerrr, including the “open arms” pose,
immediately would be recognized as and understood to be
merely depictions of the live costumed character himself,
who wears the team’s baseball uniform which includes the
Opposition No. 91163833
35
jersey prominently displaying opposer’s “Royals” script logo
on his chest and his name SLUGGERRR on the back.
Nonetheless, because the record shows that opposer has
used the “open arms” cartoon rendering of Sluggerrr as a
mark, and because the “open arms” pose obviously provides
opposer with its best argument on the issue of the
similarity of the marks, we shall focus our analysis under
the first du Pont factor largely on a comparison of the
parties’ respective “open arms” depictions of their marks.
However, in analyzing the “open arms” cartoon version
of Sluggerrr, we reject opposer’s contention that the
“Royals” script logo mark on Sluggerrr’s jersey should be
accorded diminished significance because it is somewhat
obscured. Because Sluggerrr is a unitary mark, as opposer
contends, and because the live costumed character version of
the mark and the “open arms” version of the mark therefore
refer back to and reinforce each other, we find that the
“Royals” script logo on Sluggerrr’s jersey in the “open
arms” pose would readily be recognized and perceived as
such, notwithstanding the fact that it is somewhat obscured
when compared to the way it appears on the live costumed
character’s jersey.
Also with respect to the unitary nature of the mascot
mark, we note that the back of Sluggerrr’s jersey, upon
which the name SLUGGERRR appears prominently on the jersey
Opposition No. 91163833
36
actually worn by the live costumed character, is not visible
in the “open arms” cartoon depiction of the mark. However,
the record shows that when opposer uses the “open arms”
cartoon version of Sluggerrr as a mark, the name “Sluggerrr”
prominently appears in close proximity to the cartoon
depiction of Sluggerrr. This manner in which opposer makes
common law use of the “open arms” cartoon mark would
reinforce the connection between the cartoon character mark
and the name “Sluggerrr,” and increases the likelihood that
consumers will recall and consider that name in their
perception of the mark, even though it does not appear in
the “open arms” cartoon pose per se.8
We turn now to a comparison of the marks. First, it is
settled that although the marks at issue must be considered
in their entireties, one feature of a mark may be more
significant than another, and it is not improper to give
more weight to this dominant feature in determining the
commercial impression created by the mark. See In re Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir.
2004); In re National Data Corp., 753 F.2d 1056, 224 USPQ
749 (Fed. Cir. 1985). Applying this principle in the
present case, we find, for the following reasons, that the

8 In support of its claim of rights in the “open arms” Sluggerrr
pose per se, opposer relies (reply brief at 5) on OTE 17, which
is a photograph of a Sluggerrr plush doll in the “open arms”
pose. We note that the name SLUGGERRR appears on the back of the
doll’s jersey.
Opposition No. 91163833
37
dominant source-indicating feature in the commercial
impression created by each party’s mascot mark is the jersey
each mascot wears, rather than the lion character wearing
it.
The record establishes that Sluggerrr and Max, like all
sports team mascots, are representatives and extensions of
their particular teams, both at the team’s games and in
their appearances in the community at non-sports events.
The mascot identifies its team; that is the reason for and
the whole point of a mascot’s existence. The mascot’s
function is to represent and promote its team, not itself.
(Payne Disc. Depo. at 55.) The mascot’s value to its team
and its source-indicating significance to the public lies
not in the fact that it is a lion (or another common animal
mascot, e.g., a bird, a tiger, a bear, a wildcat, or a
bulldog), but rather in the fact that it is a symbol for its
particular team. Whether appearing at the teams’ games or
in the community in non-sports events, the mascot has no
significance apart from its role as a representative of its
team.
For that reason and to that end, a sports team mascot
typically wears the team’s jersey, hat, or other team
indicia, by which the mascot and the mascot’s team can be
readily distinguished from other teams and their mascots.

Opposition No. 91163833
38
(Shores Test. Depo. at 91.) See, e.g., opposer’s OTE 3, a
photograph of numerous mascots at the 1998 “Mascot Day” at
opposer’s baseball stadium, in which every one of the
mascots is wearing its team’s jersey or hat or other team
indicia:

See also opposer’s OTE 11, depicting Sluggerrr and the
mascot of the St. Louis Cardinals, both in their teams’
jerseys:
Opposition No. 91163833
39

There is no evidence that Sluggerrr or any other team’s
mascot ever wears another team’s jersey or uniform; indeed,
that would defeat the whole source-identifying purpose of
having a mascot who symbolizes and is a representative of
one specific team.
For these reasons, we find that for purposes of our
comparison of the marks, the dominant source-indicating
feature of each of the parties’ mascot marks is the uniform
or jersey each wears. We do not disregard the other
elements of the marks, i.e., the lion characters themselves,
but we find that it is the jersey that each wears which is
entitled to more weight in our comparison of the marks.
Opposition No. 91163833
40
We turn now to a comparison of the parties’ mascot
marks in terms of appearance, sound, connotation and overall
commercial impression.
In terms of appearance, we find that when the “open
arms” mascot marks Max and Sluggerrr are compared without
reference to their respective jerseys, the anthropomorphized
lion characters themselves are similar in many respects.
However, they are not identical. Significantly, Max wears a
traditional crown on the top of his head, but Sluggerrr’s
crown is integrated into and forms the top of his head down
to his muzzle, with his eyes looking out from the crown
itself. Sluggerrr’s designer, Mr. Sapp, intended this to be
a unique and distinguishing feature of Sluggerrr’s design.
(Sapp. Disc. Depo. at 130-31, 191-92.) Finally, the two
marks obviously look dissimilar to the extent that Sluggerrr
is wearing a baseball uniform with opposer’s “Royals” script
logo mark on its chest, whereas Max is wearing a jersey or
shirt bearing the letter “M” with a crown on its chest.
Comparing the marks in their entireties, we find that the
similarity of the lion characters is outweighed by the
dissimilarity of the jerseys the lions are wearing, and that
the marks overall are dissimilar in terms of appearance.
In terms of sound and to the extent that these cartoon
versions of the parties’ mascot marks would be verbalized,
we find that they are somewhat similar to the extent that in
Opposition No. 91163833
41
their entireties they might be perceived and pronounced as
something like “a lion with a ‘Royals’ [or ‘M’] jersey.”
But the marks sound dissimilar to the extent that “Royals”
and “M” sound different. The marks also sound dissimilar to
the extent that opposer’s mascot, but not applicant’s
mascot, would be recognized as and referred to verbally by
his name, “Sluggerrr.” This is so especially when Sluggerrr
appears in person as the live costumed character with his
“SLUGGERRR” jersey. It also would be likely when Sluggerrr
is depicted in the “open arms” cartoon form because, as
previously noted, when opposer uses the “open arms” cartoon
version of Sluggerrr as a common law mark, the name
“Sluggerrr” always appears in close proximity to the
cartoon.
In terms of connotation, we find that neither of these
marks has any particular meaning or connotation per se,
apart from their overall commercial impressions.
In terms of overall commercial impression, we find that
the two marks are similar to the extent that they both would
be perceived as “lion” sports team mascots, and as similar
lions at that. However, when we consider the marks in their
entireties, we find that the marks create different overall
commercial impressions in that Sluggerrr, because of his
“Royals” jersey and baseball uniform, would be perceived to
be a mascot for a baseball team named the “Royals,” while
Opposition No. 91163833
42
Max, because of the “M” on his jersey, would be perceived to
be a mascot of a sports team for which the letter “M” has
some significance.
We find this to be so even if (as opposer contends)
consumers might not recognize or identify, unaided, the
specific team (or even the specific sport) represented by
Max’s “M” jersey. Consumers, upon encountering Max with his
“M” jersey, might think that the “M” stands for Manchester,
for Monarchs, or for Max, or they might not have any idea at
all what it stands for. However, they would have no reason
to assume that it has anything to do with the Royals.
Sluggerrr has never worn a jersey bearing the letter “M.”
(Shores Test. Depo. at 89-90, 123-24.) He would have no
reason to do so, because the letter “M” has nothing to do
with the Royals, with Kansas City, or with Sluggerrr
himself. (Burgess Test. Depo. at 230-31.) Thus, even
though purchasers are likely to note the similarities
between the lion characters themselves, Max would not be
mistaken for Sluggerrr because Sluggerrr has not worn, does
not wear, and would have no reason to wear an “M” jersey.
Instead, Sluggerrr always wears his “Royals” jersey.
For these reasons, we find that the parties’ marks when
viewed in their entireties are dissimilar in terms of
overall commercial impression.
Opposition No. 91163833
43
On balance, when we consider the parties’ mascot marks
in their entireties, we find that the visual similarity of
the lion characters in themselves is outweighed by the
fundamental dissimilarity of the marks which results from
the fact that they are wearing different jerseys and clearly
would be perceived as being the mascots for two different
teams, one a team called the “Royals” and the other a team
for which, unlike the Kansas City Royals, the letter “M” has
some (even if unknown) significance. We therefore find that
the first du Pont factor weighs against a finding of
likelihood of confusion.

Fame of Opposer’s Mark
The fifth du Pont factor requires us to consider
evidence of the fame of opposer’s mark, and to give great
weight to such evidence if it exists. See Bose Corp. v. QSC
Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1309
(Fed. Cir. 2002); Recot Inc. v. Becton, 214 F.3d 1322, 54
F.2d 1894 (Fed. Cir. 2000); Kenner Parker Toys, Inc. v. Rose
Art Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453 (Fed.
Cir. 1992).
We have carefully considered opposer’s evidence
concerning the extent of its use of its Sluggerrr mascot
mark and its arguments regarding the fame of the mark. We
find, however, that opposer has failed to establish that its
Opposition No. 91163833
44
Sluggerrr mascot mark is famous, within the meaning of the
fifth du Pont factor. We will assume that opposer’s
baseball team and its “ROYALS” team name and marks are
famous.9 But we do not find on this record that its mascot
Sluggerrr, per se and apart from the team and its other
marks, is famous. The insufficiency of evidence of fame is
especially pronounced with regard to the extent of opposer’s
use of the “open arms” cartoon version of the mark, per se,
upon which opposer primarily relies in this case. The
Sluggerrr mark likely is well-known to the fans of opposer’s
baseball team, but we find that it is not, in itself, a mark
of sufficient general renown that it is entitled to the
broad scope of protection accorded to a famous mark under
the fifth du Pont factor. For these reasons, we find that
the fifth du Pont factor is neutral in this case; if it
weighs in opposer’s favor, it does so only slightly.

Third-party Marks
Under the sixth du Pont factor (number and nature of
similar marks in use on similar goods and services), we find
that there is no significant evidence of actual use of lion
mascot marks by third parties which would detract from the

9 Opposer claims that its games are broadcast on cable television
networks that reach 2.1 million homes. However, there is no
evidence that the number of homes served by the cable systems is
necessarily the number of homes which actually view opposer’s
baseball games (or its kids’ Saturday Blue Crew show).
Opposition No. 91163833
45
strength of opposer’s mark. The sixth du Pont factor is
neutral in our likelihood of confusion analysis.

Absence of Actual Confusion
Under the seventh and eighth du Pont factors (actual
confusion, and opportunity for actual confusion), we find
that there is no evidence of any actual confusion. But we
also find that the absence of such evidence is of little
probative value because there has been little opportunity
for such confusion to have occurred, in view of the parties’
disparate geographic locations. The seventh and eighth du
Pont factors cancel each other out and are neutral in our
likelihood of confusion analysis.

Bad Faith Adoption
Opposer argues that applicant adopted its Max mascot
mark in bad faith, with the intent to trade on opposer’s
goodwill and common law rights in opposer’s Sluggerrr
mascot. We shall consider this contention under the
miscellaneous thirteenth du Pont factor.10

10 Opposer also argues in its briefs that applicant at the least
adopted its Max mark with “reckless indifference to Opposer’s
rights” in Sluggerrr. Opposer has cited no authority for the
proposition that such “reckless indifference” is a probative fact
or a cognizable claim in an inter partes proceeding before the
Board.

Opposition No. 91163833
46
It is undisputed that Sluggerrr and Max were designed
by the same designer, Mr. Sapp of Real Characters, Inc. As
part of the process of designing Max, the evidence supports
a finding that Mr. Sapp showed applicant his earlier mascot
creations, including Sluggerrr, to illustrate certain design
features that might be incorporated into Max’s design.
However, we find that even if applicant was aware of
Sluggerrr at the time it adopted Max, that awareness does
not suffice to establish that applicant adopted its Max
mascot mark in bad faith. Opposer is a Major League
Baseball team in Kansas City, Missouri. Applicant, at the
time it adopted its Max mascot, was (and remains) a minor
league hockey team in Manchester, New Hampshire. The
parties are in two different sports, in two different parts
of the country. There is no basis in the record for
finding, or even reasonably supposing, that applicant
adopted its Max mascot because it affirmatively intended to
confuse its fans or opposer’s fans as to the source of its
ice hockey team entertainment services, or because it
otherwise intended to trade on the goodwill and common law
rights opposer had developed in its Sluggerrr mascot.

Likelihood of Confusion – Conclusion
Considering and weighing all of the evidence of record
as it pertains to the du Pont likelihood of confusion
Opposition No. 91163833
47
factors, we find that there is no likelihood of confusion.
Even if the parties’ mascot-related goods and services,
trade channels and purchasers might be found to overlap
(because the parties both are engaged generally in the
sports entertainment business), we find that relevant
consumers are likely to understand that Max and Sluggerrr
are two different mascots for two different teams. One is a
mascot well-known by his name “Sluggerrr” who, whether he
appears at games or in the community, represents a Major
League Baseball team named the “Royals.” The other is a
mascot for a team for which, unlike opposer’s team, the
letter “M” has some significance (even if that significance
is unknown). Max will not be mistaken for Sluggerrr,
despite the similarity of the lion characters themselves.
Moreover, the record does not support a finding that
relevant consumers would be likely to assume that any
ownership, licensing, or other type of source connection or
affiliation exists between a Major League Baseball team like
opposer’s and a professional ice hockey team like
applicant’s, just because the two teams might have lion
mascots which may look similar but for their jerseys.
Again, “[The Board] is not concerned with mere
theoretical possibilities of confusion, deception or mistake
or with de minimis situations but with the practicalities of
the commercial world with which the trademark laws deal.”
Opposition No. 91163833
48
Electronic Design & Sales, Inc. v. Electronic Data Systems
Corp., supra.
We conclude that opposer’s common law rights in its
“Sluggerrr” mascot mark do not extend so far as to preclude
applicant’s registration of its own mascot mark for the
goods and services identified in the application.

Decision: The opposition is dismissed.