AMF Bowling Worldwide, Inc.

Trademark Trial and Appeal Board

Apr 25, 2008

EX (T.T.A.B. Apr. 25, 2008)

Mailed: April 25, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re AMF Bowling Worldwide, Inc.
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Serial Nos. 78761280 and 78761901
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Douglas B. Smith of McGuire Woods LLP for AMF Bowling
Worldwide, Inc.

Tashia A. Bunch, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______

Before Hohein, Hairston and Zervas, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Applications were filed by AMF Bowling Worldwide, Inc.
to register the marks 300 (in standard character form) and
300 and design, as shown below,

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser Nos. 78761280 and 78761901
2
for services ultimately identified as “bowling alley
services consisting of promoting and conducting the
operation of bowling centers, including conducting bowling
competitions, providing bowling alleys, rental of bowling
shoes and bowling balls, party services in bowling alleys,
rental of billiard tables and provision of video and coin
operated games” in International Class 41; and “café and
restaurant services” in International Class 43.”1
The trademark examining attorney refused registration
in each application under Section 2(d) of the Trademark
Act, 15 U.S.C. §1052(d), on the ground that applicant’s
marks, when used in connection with applicant’s services,
so resemble the previously registered mark ROCK 300 (ROCK
is disclaimed) for “bowling alley services,2” as to be
likely to cause confusion.
When the refusals were made final, applicant appealed.

1 Application Serial Nos. 78761280 and 78761901, respectively.
Both applications were filed on November 28, 2005 and are based
on intent to use under Section 1(b) of the Trademark Act, 15
U.S.C. §1051(b)
2 Registration No. 2241745, issued April 27, 1999; Section 8
affidavit accepted; Section 15 affidavit received. This
registration covers other goods and services in International
Classes 9, 25 and 41 (e.g., prerecorded audio tapes, video tapes
and compact discs featuring various types of music; clothing; and
prerecorded programs pertaining to music and music videos). It
is clear, however, that the examining attorney’s refusal to
register is based solely on “bowling alley services.”
Ser Nos. 78761280 and 78761901
3
Applicant and the examining attorney have filed briefs.
In view of the similar records and issues in these two
applications, we have consolidated the applications for
purposes of final decision. Thus, we have issued this
single opinion.
Applicant, in urging reversal of the refusal to
register, contends that its marks and the cited registered
mark are different in sound, appearance, connotation and
commercial impression. Applicant contends that marks
consisting of or containing 300 are weak marks which are
therefore entitled to only a limited scope of protection.
According to applicant, the number 300 is highly suggestive
when used in connection with bowling alley services because
300 is a perfect score in a bowling game. In support of
its position in this regard, applicant submitted ten third-
party registrations for marks that include 300 for bowling
equipment and clothing (e.g., bowling balls, bowling bags,
bowling shirts) and providing information about the sport
of bowling via the Internet. Also, applicant argues that
its marks are entitled to registration over the cited
registered mark in view of the coexistence on the register
of the marks STRIKE for “bowling alley services”
(Registration No. 2862630) and LUCKY STRIKE for “bowling
alleys” (Registration No. 3060821).
Ser Nos. 78761280 and 78761901
4
As to the relatedness of applicant’s services and the
services in the cited registration, applicant’s brief is
silent on this matter.
The examining attorney, on the other hand, maintains
that the marks are similar in that applicant’s marks and
the cited registered mark share the identical element, 300.
The examining attorney is not convinced that 300 is weak.
The examining attorney points to the absence in the record
of evidence that the marks in the third-party registrations
are in use.
As to the respective services, the examining attorney
argues that the “bowling alley services” in the involved
applications are legally identical to the “bowling alley
services” in the cited registration. Further, the
examining attorney argues that the “café and restaurant
services” in the involved applications and the “bowling
alley services” in the cited registration are related
services. In support of her position, the examining
attorney submitted copies of five use-based third-party
registrations for marks that cover bowling alley services
and restaurant services as well as excerpts from fifteen
websites showing that bowling alleys offer café and
restaurant facilities. The examining attorney contends
Ser Nos. 78761280 and 78761901
5
that consumers are accustomed to seeing these types of
services provided by the same entity under the same mark.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in 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,
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services.
Turning first to a consideration of the respective
services, as the examining attorney points out, the
“bowling alley services” in applicant’s applications are
identical to the “bowling alley services” in the cited
registration. Such services would be offered in the same
channels of trade (i.e., bowling alleys) and be bought by
the same classes of purchasers (i.e., the general public).
Further, the record supports a finding that “café and
restaurant services,” on the one hand, and “bowling alley
services,” on the other hand, are related. As noted, the
examining attorney introduced excerpts from websites
showing that bowling alleys offer café and restaurant
Ser Nos. 78761280 and 78761901
6
facilities. Excerpts from several of the websites are
quoted below:
Spare Time Lanes is a restaurant and a bar, with
bowling alley in Gallitzin, Pennsylvania, that
offers the best in bar drinks, open bowling, and
delicious chicken wings..
www.dignansfirehouse.com

Welcome to Midland Family Bowl! Here we aim to
offer you the best in lanes, customer service and
food! All our lanes are synthetic lanes and kept
to expert standards! Your family will also enjoy
our clean smoke free environment. Whether you are
looking for a casual place to eat or need to
entertain friends or co-workers, the Midland Family
Bowl and Restaurant offers a unique gathering place
for all size groups.
www.midlandbowl.com

Showtime Lanes Café & Steakhouse
Restaurant, Daily Buffets & Specials, Carry-Out
Dinners, “By-the Piece or By-the-Bucket” Chicken
and Fish, Catering
For Your Next Event use our Party or Meeting Rooms!
Pro Shop · Bowling · Lounge/w Pool Tables
www.showtimelanes.com

Parkview Lanes is your place for delicious food and
bowling fun. Our bowling alley is equipped with 12
lanes, a full restaurant, and sports bar.
www.parviewlanesonline.com

Andover Lanes
Open Bowling All Day Everyday
Non-Smoking Establishment
24 Lanes
Bar & Restaurant
Full Service Snack Bar
Arcade
www.andoverlanes.com

This evidence establishes that a common source will offer
both bowling alley services and café and restaurant
Ser Nos. 78761280 and 78761901
7
services. Also, as noted, the examining attorney made of
record five use-based third-party registrations which show
that such services may be sold under a single mark by a
single source. Specifically, the examining attorney
submitted the following registrations which cover both
bowling alley services and restaurant services:
Registration No. 2797781 for the mark BOWLMOR LANES;
Registration No. 2862629 for the mark STRIKE BETHESDA;
Registration No. 2862630 for the mark STRIKE; Registration
No. 2862631 for the mark THE ENTERTAINMENT UNDERGROUND; and
Registration No. 3170054 for the mark SEVEN TEN LANES.
Although third-party registrations “are not evidence
that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, [they] may
have some probative value to the extent that they may serve
to suggest that such goods or services are the type which
may emanate from a single source.” See In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) See also
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993). Here, the registrations show adoption of the same
mark by the same entity for bowling alley services, on the
one hand, and restaurant services, on the other hand.
Further, applicant itself intends to use the applied-for
marks in connection with both types of services. In sum,
Ser Nos. 78761280 and 78761901
8
these services are related, and would be offered in
overlapping channels of trade (i.e., bowling alleys) to the
same classes of purchasers (i.e., the general public). As
noted, applicant has not argued otherwise in its brief.
We next turn to a consideration of the respective
marks. We must determine whether applicant’s marks and
registrant’s mark, when compared in their entireties, are
similar or dissimilar in terms of sound, appearance,
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
impression that confusion as to the source of the 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 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
Ser Nos. 78761280 and 78761901
9
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985).
Applicant’s marks are 300 and 300 with a bowling pins
design. The cited registered mark is ROCK 300. Obviously,
because applicant’s marks include the identical element 300
in the cited registered mark, there are consequent
similarities in appearance, sound and connotation. The
additional word ROCK in the cited registered mark is
insufficient to distinguish that mark from applicant’s
marks. With respect to applicant’s 300 and design mark, we
recognize that the bowling pins design therein cannot be
ignored. However, it is 300 that clearly dominates this
mark. The bowling pins design is subordinate and less
likely to be remembered by consumers. It is 300 that would
be used by purchasers to call for applicant’s services. In
re Appetitio Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
We find, therefore, that when applicant’s marks and
the cited registered mark are considered in their
entireties, they are similar in sound, appearance,
connotation, and commercial impression. Given the
fallibility of memory and that consumers often retain only
a general rather than specific recall of marks to which
they are exposed, the similarities in applicant’s marks and
the cited registered mark are such that, as used in
Ser Nos. 78761280 and 78761901
10
connection with the respective services, confusion as to
source or sponsorship thereof is likely to occur.
Applicant contends that marks consisting of or
containing 300 are weak marks which are therefore entitled
to only a limited scope of protection. Specifically,
applicant maintains that 300, as used in connection with
bowling alley services, is highly suggestive because 300 is
a perfect score in a bowling game. As noted, in support of
this argument, applicant submitted third-party
registrations for marks that include 300 for goods and
services in the bowling field.
Although third-party registrations are not evidence
that the registered marks are in use, such registrations
may be used to indicate that a commonly registered element
has a suggestive or commonly understood meaning for
particular goods or services such that differences in other
portions of the marks may be sufficient to render the marks
as a whole registrable. See, e.g., Tektronix, Inc. v.
Daktronics, Inc., 187 USPQ 588 (TTAB 1975), aff’d, 534 F.2d
915, 189 USPQ 693 (CCPA 1976).
In this case, the various registrations of marks
containing 300 in the bowling field indicate that this
number was chosen by the trademark owners to suggest a
perfect bowling game. However, this fact does not help to
Ser Nos. 78761280 and 78761901
11
distinguish applicant’s marks 300 and 300 design and the
cited registered mark ROCK 300. The number 300, as used in
the marks, conveys the same suggestive significance, and
the additional word ROCK in the cited registered mark does
not change significantly that meaning or the commercial
impression of the marks.
Furthermore, even weak marks are entitled to
protection where confusion is likely. Here,
notwithstanding any weakness in 300, each of applicant’s
marks is still similar in sound, appearance, connotation
and commercial impression to the cited registered mark.
Insofar as the coexistence of the registered marks
LUCKY STRIKE and STRIKE, both for bowling alley services,
is concerned, even if such registrations “have some
characteristics similar to [applicant’s applications], the
PTO’s allowance of such prior registrations does not bind
the Board or this court.” In re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). It is
well settled that each case must be decided on its own
facts, based on the particular mark, the particular goods
or services, and the particular record in each application.
See Nett Designs, supra.
Finally, to the extent we have any doubt, we resolve
it, as we must, in favor of the registrant. In re Hyper
Ser Nos. 78761280 and 78761901
12
Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed.
Cir. 1988); In re Pneumatiques, Caoutchouc Manufacture et
Plastiques Kleber-Colombes, 487 F.2d 918, 179 USPQ 729
(CCPA 1973).
In view of the foregoing, and because similar marks
are to be used in connection with identical and related
services, we find that there is a likelihood of confusion.
Decision: The refusal to register under Section 2(d)
is affirmed in each application as to the services in both
Classes 41 and 43.