Michael Siniscalchi

Trademark Trial and Appeal Board

Sep 23, 2016

No. 86589755 (T.T.A.B. Sep. 23, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: September 23, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re Michael Siniscalchi
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Serial No. 86589755
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Jeffrey C. Watson of Grell & Watson Patent Attorneys LLC,
for Michael Siniscalchi.
Kathy Wang, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Quinn, Cataldo, and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Michael Siniscalchi, dba 710 Bowling, (“Applicant”) seeks registration on the
Principal Register of the design mark shown below:

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for
Bowling alleys; Recreational services in the nature of
bowling, bocce, billiards, table tennis, foosball, darts,
shuffleboard, board games, air hockey facilities in
International Class 41.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles the registered marks SEVEN TEN LOUNGE (in
standard characters, LOUNGE disclaimed) and SEVEN TEN LANES (in standard
characters, LANES disclaimed), owned by the same Registrant, both for “bowling
alley and providing billiard rooms” in International Class 41 and for “restaurant and
bar services” in International Class 43 as to be likely to cause confusion, mistake or
deceive.2
When the refusal was made final, Applicant appealed and requested
reconsideration (February 24, 2016). After the Examining Attorney denied the
request for reconsideration, the appeal was resumed. Applicant filed a second request

1 Application Serial No. 86589755 was filed on April 7, 2015, based upon Applicant’s claim of
first use anywhere and use in commerce since at least as early as March 1, 2015. The wording
“Burgers Bocce Beer & Bowling” is disclaimed. The color(s) black, white and electric blue are
claimed as a feature of the mark.
The mark is described as follows: “The mark consists of a black field with inner and outer
electric blue rings, in the middle of the electric blue rings is a white stylized design of the
number ’710’ with the ‘1’ shaped like an electric blue bowling pin outlined in white, and
between the electric blue rings are the words ‘BURGERS BOCCE BEER & BOWLING’ in
white stylized cursive form wrapped between the top portion of the rings, a white banner
wrapped around the bottom portion of the rings, and five white dots connecting the words
and banner on both sides.”
2 Registration Nos. 3170053 and 3170054, respectively, both issued November 7, 2006; for
both, Section 8 accepted; Section 15 acknowledged.
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for reconsideration (May 9, 2016), and filed its appeal brief on May 16, 2016. We
affirm the refusal to register.
I. Evidentiary issue
The Examining Attorney has objected to evidence attached to Applicant’s appeal
brief. This evidence is the same evidence that accompanied Applicant’s second
request for reconsideration, filed on May 9, 2016, prior to filing his appeal brief.3 We
construe the second request for reconsideration as a request for remand to make
additional evidence of record. In re Valenite Inc., 84 USPQ2d 1346, 1346 (TTAB 2007);
TBMP Section 1209.04 (2016) (second request for reconsideration will be treated as a
request for remand whether or not it is captioned as such). It is the Board's practice
to grant such requests when good cause is shown. In re Houston, 101 USPQ2d 1534,
1537 n.6 (TTAB 2012) (citing TBMP Section 1207.02), aff’d, 731 F.3d 1326, 108
USPQ2d 1226 (Fed. Cir. 2013). Here, Applicant has not supported its request for
remand by a showing of good cause. Accordingly, the request is denied. In re
HerbalScience Group LLC, 96 USPQ2d 1321, 1323 (TTAB 2010). Notwithstanding,
in order to assist the Board in making a more fully informed decision on the issue
under appeal, we have exercised our discretion to consider the Wikipedia evidence
submitted with the request for remand for the limited purpose discussed below;
however, we have otherwise not considered the evidence submitted in connection with
the request for remand.4

3 This paper was filed in TEAS and was not filed in the Board proceeding.
4 We note that even if we had considered the evidence, it would not change our decision
herein.
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We further note that the first request for reconsideration included Internet
hyperlinks, but did not include printouts of the evidence referenced by Applicant. As
correctly noted by the Examining Attorney in her denial of reconsideration, providing
hyperlinks to Internet materials is insufficient to make such materials of record. In
re Powermat Inc., 105 USPQ2d 1789 (TTAB 2013) (citing In re HSB Solomon
Associates LLC, 102 USPQ2d 1269 (TTAB 2012)). Therefore, the hyperlinks to the
websites have not been considered.5
The Examining Attorney also has requested in her brief that we take judicial
notice of the dictionary definitions for “lounge” and “lanes.” The request is granted.
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB
1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983) (the Board may take
judicial notice of dictionary definitions).
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are
the similarities between the marks and the similarities between the services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA

5 Similarly, Applicant’s September 22, 2015 Response to Office Action contains hyperlinks to
Wikipedia and a Google search. As stated above, these Internet websites are not of record.
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1976). These factors, and the other relevant du Pont factors now before us, are
discussed below. To the extent that any other du Pont factors for which no argument
or evidence was presented may nonetheless be applicable, we treat them as neutral.
A. The similarity or dissimilarity and nature of the services and trade
channels
Applicant’s services are “bowling alleys; recreational services in the nature of
bowling, bocce, billiards, table tennis, foosball, darts, shuffleboard, board games, air
hockey facilities.” Registrant’s services include “bowling alley and providing billiard
rooms.” Applicant’s bowling alleys and recreational services in the nature of bowling
and billiards are legally identical to Registrant’s bowling alley and billiard room
services. The Examining Attorney also argues the relatedness of Applicant’s bowling
alley services and recreational services in the nature of bocce, table tennis, foosball,
darts, shuffleboard, board games, air hockey to respectively, Registrant’s restaurant
services and bowling alley[s] since “bowling alleys commonly offer restaurant and/or
bar services, bocce, table tennis, foosball, darts shuffleboard games and/or air
hockey.” To support this assertion, the Examining Attorney has provided Internet
evidence showing that businesses which offer bowling also often offer restaurant
services and/or other games such as darts, table tennis, shuffleboard, air hockey,
bocce and foosball. (October 14, 2015, Office Action; p. 2-28; July 21, 2015 Office
Action, pp. 8-36). The Examining Attorney also submitted evidence that Applicant
provides a bar and restaurant in connection with its bowling alleys and recreational
services. (July 21, 2015 Office Action, pp. 37-59). We find Applicant’s bowling alley
services are related to Registrant’s restaurant and bar services, and Applicant’s
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recreational services in the nature of “table tennis, foosball, darts, shuffleboard, board
games, air hockey facilities” are related to Registrant’s bowling alley services.
As to channels of trade, because the recited services in the application and
registration are in part legally identical, we must also presume that both Applicant’s
and Registrant’s in part identical services travel in the same ordinary trade and
distribution channels and will be marketed to the same potential consumers. In re
Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there
was no evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion); In
re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Institute, 101 USPQ2d 1022, 1032 (TTAB 2011) (finding
services, which were in part identical, as being offered to the same classes of
purchasers and in the same channels of trade). We further note that in connection
with Applicant’s and Registrant’s related services, the Examining Attorney’s Internet
evidence reflects that these services, i.e., bowling alley and restaurant services and
bowling alley and recreational services such as bocce, darts, shuffleboard etc. are
marketed in the same channels of trade. On appeal, Applicant does not dispute any
of the foregoing.
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B. The similarities or dissimilarities between the marks in their entireties,
in terms of appearance, sound, connotation and commercial impression
When marks would appear on legally identical services, as is the case here at least
in part, “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 America,
970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). We consider the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)
(quoting du Pont, 177 USPQ at 567). “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, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975).
Applicant argues that the Trademark Examining Attorney has improperly
dissected the involved marks, focusing only on the common word/number SEVEN
TEN/710 and thereby failing to consider the other distinguishing characteristics of
the respective marks, namely, the design and wording BURGERS BOCCE BEER &
BOWLING in Applicant’s mark, (which Applicant contends is spoken aloud as
“BURGERS BOCCE BEER & BOWLING 710” rather than the number 710 leading
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the disclaimed terms) and the wording LANES or LOUNGE in Registrant’s marks.
Applicant submits that in its mark, the “complex design logo” as well as the use of
the number 710 instead of use of the word SEVEN TEN create a different commercial
impression from Registrant’s marks. Applicant argues that the literal portions of its
mark and Registrant’s marks lack phonetic similarity and have different meanings
due to the additional terms BURGERS BOCCE BEER & BOWLING in Applicant’s
mark and LANES or LOUNGE in Registrant’s marks. Applicant also asserts that the
marks are visually different, due to the “complex design logo.” While acknowledging
that both marks contain “the word ‘Seven-Ten,” Applicant argues that the “SEVEN
TEN portion of the [Registrant’s] marks, if considered alone, would be considered
descriptive since SEVEN TEN merely describes ‘one of the infamous splits’ in
bowling.”6 (7 TTABVUE 15). Applicant further argues that SEVEN TEN/710 is not
the dominant term in Applicant’s and Registrant’s marks since it is “descriptive of
bowling and related services” or “highly suggestive and weak because it is used to
describe the infamous SEVEN-TEN split in connection with bowling and bowling
alleys.” (7 TTABVUE 12, 15).
We acknowledge, as Applicant argues, that the marks must be considered in their
entireties. However, 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

6 In connection with bowling, SEVEN TEN refers to: “One of the most infamous of splits is
the 7–10 split, often called ‘goal posts’ or ‘bedposts’, where the bowler is left with the leftmost
and the rightmost pin in the back row (the number 7 and number 10) to knock down with a
single ball to achieve a spare. This is also one of the most difficult splits to pick up.”
Wikipedia.com, second request for reconsideration, May 9, 2016, p. 11.
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impression created by a mark in that overall comparison. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); In re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
Disclaimed matter is typically less significant or less dominant when comparing
marks. See In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed.
Cir. 1997); National Data, 224 USPQ at 751 (“That a particular feature is descriptive
… with respect to the relevant goods or services is one commonly accepted rationale
for giving less weight to a portion of the mark.”).
In Registrant’s standard character mark SEVEN TEN LANES, the wording
SEVEN TEN is the dominant portion of the mark as the disclaimed wording LANES
is highly descriptive/generic and has little to no role in the source identifying function
of Registrant’s mark.7 See, e.g., In re Dixie Restaurants, Inc., 41 USPQ2d at 1533-34.
Further, purchasers in general are inclined to focus on the first word or portion in a
trademark, especially where the first word is followed by non-source-indicating
terminology (as is the case with LANES). See Palm Bay Imports, 73 USPQ2d at 1692;
Presto Products, Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988)
(“it is often the first part of a mark which is likely to be impressed upon the mind of
a purchaser and remembered”). Likewise, in Registrant’s standard character mark
SEVEN TEN LOUNGE, the word SEVEN TEN is the dominant portion over the
disclaimed descriptive/generic wording LOUNGE which, as discussed above, is

7 The term LANE is defined as “a wood-surfaced passageway or alley along which a bowling
ball is rolled.” American Heritage Dictionary (5th ed. 2016).
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entitled to less weight in our comparison of the marks.8 SEVEN TEN is at most
suggestive as used in connection with Registrant’s services.
Applicant’s mark consists of a design, the number 710, and the
disclaimed wording BURGERS BOCCE BEER & BOWLING. With regard to the
number 710, prominently displayed in the center of the design, consumers will
immediately recognize this portion of the mark as the number 710, suggesting the
challenging 7-10 split, with a bowling pin substituting for the number “1.” As to the
additional design elements of the mark, which Applicant describes as “electric blue
rings,” “white banner” and “white dots,” these geometric design features serve merely
to frame the literal elements and are subordinate thereto. It is an often-recited
principle that when a mark consists of a literal portion and a design portion, the
literal portion is usually more likely to be impressed upon a purchaser's memory and
to be used in calling for the goods or services; therefore, the literal portion, consisting
of the prominently sized 710 and BURGERS BOCCE BEER & BOWLING, is
normally accorded greater weight in determining whether marks are confusingly
similar. See, e.g., In re Viterra Inc., 101 USPQ2d at 1911; In re Dakin's Miniatures,
Inc., 59 USPQ2d 1593, 1596 (TTAB 1999). In this case, we find that the design
elements of Applicant's mark deserve less weight in our analysis because customers

8 The term LOUNGE is defined as “a cocktail lounge.” American Heritage Dictionary (5th
ed. 2016).
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will likely use the word portion of the mark to request the services. As to the
additional literal elements of the mark, the wording BURGERS BOCCE BEER &
BOWLING is in smaller type surrounding the number 710 and has been disclaimed.
Although Applicant argues otherwise, we find that of the literal portions of the mark,
the number 710 is the dominant element in Applicant’s mark as the disclaimed terms
BURGERS BOCCE BEER & BOWLING are descriptive or generic of Applicant's
services, and as stated above, are entitled to less weight in the likelihood of confusion
analysis.
In considering Applicant’s and Registrant’s marks, we conclude the marks are
similar. The dominant portion of Applicant’s mark, the number 710, is the phonetic
equivalent of the dominant portion of Registrant’s marks, SEVEN TEN, and could be
verbalized and heard as “seven ten.” 7-11 Minit Markets, Inc., v. The Southland
Corporation, 301 F. Supp. 1000, 161 USPQ 562 (D. Nev. 1969) (7-11 and 7-11 Minit
Markets similar to “7-Eleven” and “Seven-Eleven”). The meaning of SEVEN TEN and
710 in both marks also is the same as they both are a reference to the “infamous” 7-
10 split in bowling. We find on this record that 710 or SEVEN TEN as displayed in
the marks at issue is suggestive of an aspect of bowling, but not merely descriptive
thereof. As a result, 710 or SEVEN TEN is more distinctive than the other wording
in the marks. While admittedly there are differences in the marks, particularly the
presence of different disclaimed terms, and the inclusion of a design in Applicant’s
mark, the presence of these elements does not overcome the overall similarity of the
marks and is insufficient, especially given the partial identity of the services, to
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distinguish the marks as it is the term SEVEN TEN/710 that dominates. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in
their entireties with non-dominant features appropriately discounted, the marks
[GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become
nearly identical ....”). We find that when considered in their entireties, Applicant’s
mark is substantially similar in sound, appearance, connotation and overall
commercial impression to the cited marks due to the shared term SEVEN TEN/710.
C. Number and nature of similar marks in use on similar services
Applicant argues, under the sixth du Pont factor, that SEVEN TEN is a weak term
and entitled only to a narrow scope of protection due to “extensive third party [sic]
use” as use of the term is “fairly common in the bowling and the bowling alley
business,” and thus is descriptive of bowling and bowling-related services. (4
TTABVUE, 11 15). Applicant contends that SEVEN TEN is “conclusively diluted.”
However, the record does not support these assertions.9 We therefore find this du
Pont factor neutral.
III. Conclusion
After considering all of the arguments and evidence properly of record and all
relevant du Pont factors, including those not specifically discussed herein, we
conclude that because the marks are similar, the services are legally identical in part

9 The only evidence provided by Applicant in connection with these arguments is the evidence
submitted with the second request for reconsideration (i.e., request for remand), which, as
stated above, we have not considered. In any event, that evidence, even if considered, is
insufficient to establish that SEVEN TEN is weak in connection with Registrant’s services.
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and/or related and move in the same channels of trade, confusion is likely between
Applicant’s mark and the marks in the cited registrations.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.