Planet Bingo, Inc.

Trademark Trial and Appeal Board

Oct 20, 2009

No. 77445498 (T.T.A.B. Oct. 20, 2009)

Hearing: Mailed:
September 16, 2009 October 20, 2009

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

In re Planet Bingo, Inc.
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Serial No. 77445498
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Jeffrey L. Weiss and Karen J. Sepura of Weiss & Moy, P.C.
for Planet Bingo, Inc.

William T. Verhosek, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
_______

Before Walsh, Taylor and Bergsman, Administrative Trademark
Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Planet Bingo, Inc. (“applicant”) filed a use-based
application to register the mark PLANET BINGO and design,
shown below, for goods ultimately identified as follows:
Computer game programs; computer game
software; computer hardware; computer
hardware and computer software programs
for the integration of text, audio,
graphics, still images and moving
pictures into an interactive delivery
for multimedia applications; computer
operating systems; computer hardware
and software for operating bingo slot
machines, gaming machines, legal
gambling devices, bingo electronics,
casino slot machines, bingo hall and
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77445498
2
club servers and electronic bingo
games, in Class 9.1

Applicant disclaimed the exclusive right to use the word
“Bingo.”

The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the mark B1 GAMES,
in standard character form, for the goods set forth below:
Computer game programs; computer game
software; interactive video game
programs; video game software;
prerecorded digital video discs and
multimedia software recorded on CD-
ROMS, both featuring movie and
television clips; game equipment,
namely, prerecorded digital video discs
and multimedia software recorded on CD-
ROMS, both featuring movie and
television clips; interactive and
multi-media games, namely, interactive
multimedia computer game programs, in
Class 9.

1 Applicant has also sought registration for services in Class
35, but those services are not at issue in this appeal.
Serial No. 77445498
3
Registrant disclaimed the exclusive right to use the word
“games.” 2
The appeal has been fully briefed, and applicant and
the examining attorney appeared at an oral hearing.
Our determination of likelihood of confusion 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 the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (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, 29 (CCPA 1976) (“The
fundamental inquiry mandated by §2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks”).

2 Registration No. 3209721, issued February 13, 2007.
Serial No. 77445498
4
A. The similarity or dissimilarity and nature of the
goods described in the application and registration.

The goods in the application and cited registration
are identical in part. The description of goods in the
application and the cited registration both include, inter
alia, computer game programs, computer game software, and
interactive multimedia applications. Although the entire
description of goods in the application and registration
are not completely identical, “[l]ikelihood of confusion
may be found based on any item that comes within the
identification of goods in the involved application and
registration.” In re La Peregrina Ltd., 86 USPQ2d 1645,
1647 (TTAB 2008).
B. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

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 are the
same. See 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 and Mehaffey, 31
Serial No. 77445498
5
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”).
C. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
9 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks,
we are mindful that the test is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression so
that confusion as to the source of the goods and services
offered under the respective marks is likely to result.
San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
Serial No. 77445498
6
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir.
June 5, 1992).
“Bingo” is a “[g]ame where the goal is to match the
numbers on a playing card to those drawn by the house using
numbered balls. The standard winning pattern on the card
is a complete list or line of numbers in a horizontal,
vertical, or diagonal pattern.”3
The name “Planet Bingo” forms the dominant commercial
impression of applicant’s mark because it is the largest
feature of the mark and because it is superimposed over the
bingo balls. Thus, it is the most prominent part of the
mark. In articulating reasons for reaching a conclusion on
the issue of likelihood of confusion, there is nothing
improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).

3 Hashimoto and Fenich, Casino Dictionary: Gaming and Business
Terms, p. 9 (2007). The Board may take judicial notice of
dictionary evidence. University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). See also
Encyclopedia Americana (2009) and Encyclopedia Britannica (2009).
The Board may also take judicial notice of information in
encyclopedias. B.V.D. Licensing Corp. v. Body Action Design
Inc., 846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988).
Serial No. 77445498
7
The significance of the name “Planet Bingo” as the
dominant element of applicant’s mark is further reinforced
by the fact that in the case of marks consisting of words
and a design, the words are normally given greater weight
because they would be used by consumers to request the
products. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593,
1596 (TTAB 1999); In re Appetito Provisions Co., 2 USPQ2d
1553, 1554 (TTAB 1987). Moreover, the B1 designation on
the first bingo ball does not convey any distinct or
separate impression apart from being a bingo number. In
fact, the B1 designation serves to strengthen the
association between applicant’s mark and the goods
described in the application by engendering the commercial
impression of a bingo ball. Thus, we find that the name
“Planet Bingo” is the dominant portion of applicant’s mark.
Because the impact of the B1 designation in the
overall commercial impression of applicant’s mark is minor
when compared with the name PLANET BINGO, consumers will
attach greater significance to the name PLANET BINGO and
invariably refer to the mark as PLANET BINGO. In view of
the foregoing, we find that applicant’s mark PLANET BINGO
and design is not similar to the mark B1 GAMES.

Serial No. 77445498
8
E. Balancing the du Pont factors.
Notwithstanding the fact that the applicant is seeking
to register its mark for goods that are in part identical
to those in the cited registration, we conclude that there
is no likelihood of confusion because the marks are too
different, especially in terms of their commercial
impressions. Simply put, the dissimilarity between the
marks is dispositive in this case. Kellogg Co. v. Pack’em
Enterprises Inc., 14 USPQ2d 1545 (TTAB 1990), aff’d, 951
F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991).
Decision: The refusal to register is reversed.