Redneck Entertain-ment, Inc.

Trademark Trial and Appeal Board

Jan 5, 2006

No. 76529701 (T.T.A.B. Jan. 5, 2006)

1/5/2006

THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B.

UNITED STATES PATENT AND TRADEMARK OFFICE
______________

Trademark Trial and Appeal Board
___________

In re Redneck Entertainment, Inc.
_____________

Serial No. 76529701
_____________

Peter J. Alessandria, Esq. for Redneck Entertainment, Inc.

Florentina Blandu, Trademark Examining Attorney, Law Office
112 (Janice O’Lear, Managing Attorney).
_____________

Before Hanak, Quinn and Walters, Administrative Trademark
Judges.

Opinion by Hanak, Administrative Trademark Judge:

Redneck Entertainment, Inc. (applicant) seeks to
register in standard character form REDNECK RICHES for
“gaming machines for playing electronic games of chance.”
The intent-to-use application was filed on July 17, 2003.
Citing Section 2(d) of the Trademark Act, the Examining
Attorney refused registration on the basis that applicant’s
mark, as applied to applicant’s goods, is likely to cause
confusion with the mark REDNECK previously registered in
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2
standard character form for “computer programs for video
games and computer games and instruction manuals sold as a
unit with the programs, and computer programs for video games
and computer games which may be downloaded from a global
computer network.” Registration No. 2,448,883.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining Attorney
filed briefs. Applicant did not request an oral hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the goods and the similarities of the marks. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976)(“The fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences in
the marks.”).
Considering first the marks, we recognize that in
comparing applicant’s mark and registrant’s mark we are
obligated to compare the marks “in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 750 (Fed.
Cir. 1985). However, in comparing the marks in their
entireties, it is completely appropriate to give less weight
to a portion of a mark that is, at a minimum, highly
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3
suggestive of the relevant goods. National Data, 224 USPQ at
751.
Obviously, the registered mark consists simply of the
single word REDNECK. There is no dispute that as applied to
applicant’s goods and registrant’s goods the work REDNECK is
an entirely arbitrary word. In creating its trademark,
applicant has taken the entirely arbitrary word REDNECK and
merely added to it the word RICHES. As applied to
applicant’s goods and registrant’s goods, we find that the
term RICHES is, at a minimum, highly suggestive of the two
sets of goods. Indeed, at page 1 of its brief, applicant
concedes that “consumers [interested in such goods] are
naturally attuned to a word like ‘Riches’ since it has a
special significance to those playing casino games for
money.”
However, before we explain our reasoning, one point
should be clarified. At page 3 of her brief, the Examining
Attorney has stated that registrant’s goods include “computer
programs for video games and computer games.” At page 1 of
its reply brief, applicant makes the following statement:
“The goods covered by the Registrant’s mark are ‘computer
programs for video games and computer games.’” While the
cited registration includes additional goods, both applicant
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and the Examining Attorney have focused simply on
registrant’s “computer programs for video games and computer
games.” Because these are some of the goods of the cited
registration, we too will focus simply upon registrant’s
“computer programs for video games and computer games.” The
fact that these programs for games may be downloaded from a
global computer network does not alter our analysis.
The term “riches” is defined as follows: “valuable
possessions; much money.” Webster’s New World Dictionary (2d
ed. 1996.). Obviously, the whole point of “gaming machines
for playing electronic games of chance” is to obtain money,
and hopefully much money. Applicant does not argue to the
contrary. Moreover, registrant’s “computer programs for
video games and computer games” can include gaming video
games and gaming computer games, a point which will be
discussed at greater length when we turn to an analysis of
applicant’s goods and registrant’s goods. Thus, the term
“riches” as applied to both applicant’s goods and at least
certain of registrant’s goods is, at a minimum, highly
suggestive in that it readily identifies the object of
playing said games, namely to obtain “riches,” that is,
money.
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Thus, while we are obligated to compare the two marks in
their entireties, in doing so we give less weight to the
second word in applicant’s mark because it is, at a minimum,
highly suggestive of applicant’s goods and at least certain
of registrant’s goods. As noted earlier, this is an entirely
appropriate approach pursuant to the teachings of National
Data, 224 USPQ at 751.
The marks are also similar for a second reason in that
the arbitrary term REDNECK constitutes the entirety of the
registered mark and it is the first word in applicant’s mark.
Because it is “the first word” in applicant’s mark, this is a
factor which makes “the marks similar.” Palm Bay Imports,
Inc. v. Veuve Clicquot, 396 F.3d 1369, 73 USPQ2d 1689, 1690
(Fed. Cir. 2005). See also Presto Products v. Nice-Pak
Products, 9 USPQ2d 1825, 1897 (TTAB 1998)(The fact that two
marks share the same first word is generally “a matter of
some importance since it is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered.”).
Finally, the marks are also similar because both are
depicted in standard character form (typed drawing form).
This means that the two marks are not limited to being
“depicted in any special form,” and hence we are mandated to
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“visualize what other forms the mark[s] might appear in.”
Phillips Petroleum Co. v. C. J. Webb Inc., 442 F.2d 1376, 170
USPQ 35, 36 (CCPA 1971). See also INB National Bank v.
Metrohost Inc., 22 USPQ2d 1585, 1588 (TTAB 1992).
One reasonable manner of presenting applicant’s mark
would be to depict the entirely arbitrary word REDNECK in
large lettering on one line, and then depict the, at a
minimum, highly suggestive term RICHES in decidedly smaller
lettering on a second line. When so depicted, the two
trademarks would be extremely similar.
Turning to a comparison of applicant’s goods and certain
of registrant’s goods (computer programs for video games and
computer games), applicant makes the error of attempting to
distinguish its goods from registrant’s goods by focusing on
its actual goods and registrant’s actual goods. Applicant
argues that its gaming machines “are only available in Indian
casinos.” (Applicant’s brief page 3). On the other hand,
applicant argues, without any evidentiary support, that
registrant’s “computer games are used solely for family or
social entertainment … There are no opportunities to win cash
or prizes.” (Applicant’s brief page 2).
It is well settled that in Board proceedings, “the
question of likelihood of confusion must be determined based
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on an analysis of the marks as applied to the goods and/or
services recited in applicant’s application vis-à-vis the
goods and/or services recited in [the cited registration],
rather than what the evidence shows the goods and/or services
to be.” Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
1491, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). Applicant’s
description of goods contains absolutely no limitation that
its gaming machines will be used solely in Indian casinos.
Moreover, at least certain of registrant’s goods (computer
programs for video games and computer games) are described in
a broad enough fashion to include both games where money is
not involved and games where money is involved. In this
regard, we note that the Examining Attorney has made of
record a number of advertisements taken from the Internet
where various entities offer both computer games that can be
played with no money involved and computer games that are
indeed gaming machines where money is most certainly
involved.
Thus, as set forth in the application and cited
registration, we find that applicant’s goods and at least
certain of registrant’s goods are closely related.
Applicant’s goods are “gaming machines for playing electronic
games of chance” and certain of registrant’s goods are
Ser. No. 76529701
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“computer programs for video games and computer games.”
There is no restriction in the cited registration that states
that the computer programs for video games and computer games
shall be limited to games not involving money.
In summary, given the fact that applicant’s goods and
registrant’s goods are closely related and the additional
fact that applicant’s mark and registrant’s mark are similar,
we find that were applicant to use its mark there would exist
a likelihood of confusion.
Decision: The refusal to register is affirmed.