Uproar Ltd.

Trademark Trial and Appeal Board

Jun 19, 2001

No. 75749128 (T.T.A.B. Jun. 19, 2001)

6/19/01 Paper No. 12
CEW
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Uproar Ltd.
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Serial No. 75/749,128
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Gary H. Fechter and Meredith D. Pikser of Hall, Dickler,
Kent, Goldstein & Wood for Uproar Ltd.
Michele Lynn Swain, Trademark Examining Attorney, Law Office
103 (Dan Vavonese, Acting Managing Attorney).
____________
Before Hohein, Walters and Rogers, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Uproar Ltd. has filed a trademark application to
register the mark TRIVIA BLITZ for “entertainment in the
nature of on-line trivia games provided via a global
computer information network.”1 The record includes a
disclaimer of TRIVIA apart from the mark as a whole.
The Trademark Examining Attorney has issued a final
refusal to register under Section 2(d) of the Trademark Act,
15 U.S.C. 1052(d), on the ground that applicant’s mark so

1 Serial No. 75/749,128, in International Class 41, filed July 13, 1999,
based on use in commerce, alleging first use and use in commerce as of
August 17, 1997.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/749,128
2
resembles the mark BLITZ, previously registered for
“entertainment services in the nature of an on-line
interactive sports related game,”2 that, if used on or in
connection with applicant’s goods, it would be likely to
cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
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 the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In
considering the evidence of record on these factors, we keep
in mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re Azteca
Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and
the cases cited therein.
The Examining Attorney contends that the word TRIVIA in
applicant’s mark is merely descriptive and, thus, the word

2 Registration No. 2,062,056 issued May 13, 1997, to Sportsline USA, in
International Class 41.
Serial No. 75/749,128
3
BLITZ is the dominant portion of applicant’s mark; that the
dominant portion of applicant’s mark is identical to
registrant’s mark in its entirety; that applicant’s trivia
game encompasses sports trivia; and that both applicant’s
and registrant’s services, as identified, are games offered
over the Internet.
In support of her position, the Examining Attorney
submitted a dictionary definition of “trivia” as
“unimportant or little-known details or information”;
excerpts of articles from the LEXIS/NEXIS database
containing the words “trivia,” “sports” and “online”; copies
of third-party registrations that recite services including
both applicant’s and registrant’s identified services in
connection with a single mark; and copies of pages from both
applicant’s and registrant’s Internet web sites.
Applicant’s web site home page, which is one of the
specimens of record in the application, includes links to
various games offered by applicant, including TRIVIA BLITZ
and UPROAR SPORTS. Registrant’s web site includes links to
sports trivia games.
The following are a representative sample of the
LEXIS/NEXIS excerpts submitted by the Examining Attorney:
Are you ready for a challenge? Visit our web site
to play “The Brain Buster” online. How many
sports-trivia questions can you answer correctly
as you race the clock? (Sports Illustrated for
Kids, July 2000.)
Serial No. 75/749,128
4
“Expect to play games on wireless devices as
technology advances” – Later on, you’ll start to
see more nontraditional games like online sports
fantasy leagues or trivia games where users can
compete for prizes over their online phone
network. (The Dallas Morning News, May 18, 2000.)
“Contestants” vie simultaneously for cash and
other prizes on Gamesville’s online trivia, sports
and card “gameshows.” (The Boston Herald,
November 24, 1999.)
With revenues of $26 million last year, NTN
provides interactive television and on-line
programming, including sports and trivia games for
patrons in restaurants, bars, hotel lounges and
other facilities in North America. (The
Providence Journal-Bulletin, August 7, 1997.)
Applicant contends that, because the word TRIVIA
describes, essentially, the subject matter of applicant’s
game, it is a significant aspect of applicant’s mark as a
whole and effectively distinguishes applicant’s mark from
registrant’s mark. Applicant contends, further, that its
services are unrelated to registrant’s services because they
are sold through different trade channels, i.e., they are
available on different web sites; and there is no “per se”
rule that all on-line games are related.
We take judicial notice of the following definition of
“blitz” in The American Heritage® Dictionary of the English
Language (3rd ed. 1996):
1. a. A blitzkrieg. b. A heavy aerial
bombardment. 2. An intense campaign: a media
blitz focused on young voters. 3. Football. A
defensive play in which one or more
linebackers or defensive backs charge through
the line of scrimmage at the snap in an
Serial No. 75/749,128
5
attempt to overwhelm the quarterback,
especially in a passing situation.
Applicant contends that, in view of the definitions of
“trivia” and “blitz,” both applicant’s mark, TRIVIA BLITZ,
and registrant’s mark, BLITZ, are weak marks in connection
with their respective services and entitled to a limited
scope of protection. In support of this contention,
applicant submitted copies of third-party registrations for
marks incorporating the term BLITZ for various toys, games
and entertainment products and services.3 The third party
registrations include the following marks and goods or
services:
BLITZ - computer and video football games on tape,
CD, etc. and hand-held units for playing football
games via video and coin-operated arcades;
BJ BLITZ BLACKJACK – entertainment services of
providing linking equipment for gaming machines
(BLACKJACK disclaimed);

ALPHABLITZ - board and card games;
60-SECOND BLITZ - equipment for skill and action
games;
BIG RED BLITZ - tickets for playing games of
chance;
BLITZBALL – entertainment services in nature of a
short-court version of basketball games;

3 We have considered the copies of registrations submitted with
applicant’s June 22, 2000 response. Subsequently, applicant submitted a
list of registrations, which is not acceptable evidence of the existence
of those registrations. Applicant also submitted copies of
registrations with its brief, which evidence is untimely. In view
thereof, and because the Examining Attorney objected, we have not
considered the latter two submissions.
Serial No. 75/749,128
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BLITZ-BACKGAMMON - computer game programs.4
We consider, first, whether applicant’s mark and the
registered mark, when viewed in their entireties, are
similar in terms of appearance, sound, connotation and
commercial impression. 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 impressions
that confusion as to the source of the goods or services
offered under the respective marks is likely to result. 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 (TTAB 1975). Furthermore, although the marks at
issue must be considered in their entireties, it is well
settled that 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 National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
As applicant admits, both in its brief and by its
disclaimer, the term TRIVIA is merely descriptive of the
subject matter of applicant’s games. However, contrary to

4 Respectively, Registration Nos. 2,215,166 and 2,206,268; 2,236,060;
2,200,658; 2,017,628; 1,868,469; 1,837,469; and 1,822,457.
Serial No. 75/749,128
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applicant’s contention that this term distinguishes
applicant’s mark from registrant’s mark, we find that,
because of the highly descriptive nature of the term TRIVIA
in relation to applicant’s services, the term BLITZ is
likely to be perceived as the dominant portion of
applicant’s mark.
Additionally, even though BLITZ, in view of the
judicially noticed definition thereof, would seem to be a
suggestive rather than arbitrary term in connection with
both applicant’s and registrant’s services, it has a
substantially similar connotation and engenders a
substantially similar overall commercial impression in both
marks. Moreover, while applicant has pointed to a number of
third-party registrations incorporating the term BLITZ, we
conclude from a review thereof that the third-party
registrations and registrant's registration for BLITZ
coexist largely because of differences in the respective
goods and services. However, even if we consider the cited
mark to be weak, due to its suggestiveness, the owner of a
registration for a weak mark is still entitled to protection
against registration by a subsequent user of the same or
similar mark for the same or related goods. See Hollister
Incorporated v. Ident A Pet, Inc., 193 USPQ 439 (TTAB 1976).
Considering the marks in their entireties, we find that
the overall commercial impressions of applicant’s mark
Serial No. 75/749,128
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TRIVIA BLITZ and registrant’s mark BLITZ are substantially
similar.
Turning to consider the services involved in this case,
we note that the question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Further, it is a general rule that goods or services need
not be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer or
that there is an association between the producers of each
party’s goods or services. In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991), and cases cited therein.
Serial No. 75/749,128
9
In this case, applicant’s services are on-line trivia
games and registrant’s services are on-line interactive
sports games. The evidence establishes that trivia games
encompass sports trivia games; that applicant, in fact,
provides sports trivia games at its site, albeit under a
different mark; and that registrant’s site provides links to
sports trivia games. Based on this evidence, we find that
the services are closely related and, further, that
applicant’s identified services encompass registrant’s
identified services.
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, TRIVIA BLITZ, and registrant’s mark, BLITZ, their
contemporaneous use on the closely related services involved
in this case is likely to cause confusion as to the source
or sponsorship of such services.
In view of the third party registrations incorporating
the term BLITZ, to the extent that there is any doubt about
the merits of refusing registration to applicant, we resolve
this doubt in favor of registrant. Applicant, as the
newcomer, has the opportunity of avoiding confusion and is
obligated to do so. See TBC Corp. v. Holsa Inc., 126 F.3d
1470, 44 USPQ2d 1315 (Fed. Cir. 1997).
Decision: The refusal under Section 2(d) of the Act is
affirmed.