Bad Juju Games, LLC

Trademark Trial and Appeal Board

May 31, 2013

No. 85976227 (T.T.A.B. May. 31, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 31, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Bad Juju Games, LLC
_____

Serial No. 85976227
_____

Eric L. Tanezaki for Applicant Bad Juju Games, LLC.

W. Kay H. Price, Trademark Examining Attorney, Law Office 103 (Michael
Hamilton, Managing Attorney).
_____

Before Kuhlke, Wellington and Greenbaum, Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Bad Juju Games, LLC filed, on March 18, 2011, an intent-to-use application
to register on the Principal Register the standard character mark BAD JUJU
GAMES (GAMES disclaimed) for goods ultimately identified as “video game
software for mobile devices, personal computers, and consoles; protective carrying
cases specially adapted for phones and hand-held computers; computer storage
devices, namely, blank flash drives” in International Class 9.1

1 Parent application Serial No. 85270963 contains goods in Classes 25 and 28.
Serial No. 85976227
2

The examining attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d), on the ground that applicant’s mark, when
applied to applicant’s goods, so resembles the previously registered standard
character mark JUJU PLAY (PLAY disclaimed) for “Computer game software
downloadable from a global computer network; Computer game software for use on
mobile and cellular phones” in International Class 9, and “Software as a service
(SAAS) services, namely, hosting software for use by others for use to enable
multiplayer gaming across wireless and fixed line networks” in International Class
42 as to be likely to cause confusion.2
When the refusal was made final, applicant filed a request for
reconsideration, in which it proposed a minor amendment to the identification of
goods. Upon reconsideration, the examining attorney accepted the proposed
amendment, which resulted in the identification of goods set forth above, but
maintained her refusal. This appeal ensued. As discussed below, we affirm the
refusal to register.
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 Drilling 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 goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

2 Registration No. 3910683, issued January 25, 2011.
Serial No. 85976227
3

USPQ 24 (CCPA 1976); and In re Azteca Restaurant Enterprises Inc., 50 USPQ2d
1209 (TTAB 1999).
As applicant’s “video game software for mobile devices” and registrant’s
“computer game software for use on mobile and cellular phones” both concern game
software for use on mobile devices, we find them to be very closely related and
possibly identical. The respective identifications of goods are sufficiently broad to
include identical goods. For example, computer video game software for mobile
devices is encompassed by both identifications of goods. Applicant does not
articulate any specific reasoning as to how the goods may differ.3 Moreover,
because the goods could be identical, and, at a minimum, are otherwise closely
related, we must presume that they travel in the same channels of trade and are
offered to the same classes of purchasers. See Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002). Accordingly, the du
Pont factors of the similarity of the goods, the channels of trade, and the classes of
purchasers favor a finding of likelihood of confusion as to the cited registration.
We turn then to the du Pont factor of the similarity of the marks, i.e.,
whether applicant’s mark BAD JUJU GAMES and registrant’s mark JUJU PLAY
are similar or dissimilar in terms of appearance, sound, connotation and commercial
impression. In making our determination, we keep in mind that the more closely

3 We note applicant’s statement that it “will discuss the three factors with respect to the
cited registration that lead to a conclusion of no likelihood of confusion,” namely, the
dissimilarities between the marks, the dissimilarities between the goods, and the “careful
purchasing conditions” concerning the respective goods. Br. p. 4. However, applicant
presented no argument regarding the purported differences between the goods, or the
“careful purchasing conditions” either in its brief, or during prosecution.
Serial No. 85976227
4

related the goods are, “the degree of similarity [between 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, 1701 (Fed. Cir. 1992).
It is well-settled that the marks must be considered in their entireties, not
dissected or split into component parts, and each part compared with other parts.
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1690 (Fed. Cir. 2005), quoting In re E. I. du Pont de
Nemours & Co., 177 USPQ at 567. The test, under the first du Pont factor, 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 goods and/or
services offered under the respective marks is likely to result. However, “[t]hat a
particular feature is descriptive [or otherwise lacking in distinctiveness] … with
respect to the involved goods or services is one commonly accepted rationale for
giving less weight to a portion of a mark….” In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). 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).
The word JUJU is the strongest source-identifying element in the registered
mark JUJU PLAY, making JUJU the more dominant and most memorable element.
The word PLAY merely describes the intended use of registrant’s “computer game
Serial No. 85976227
5

software for use on mobile and cellular phones,” and has been disclaimed. In re
J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1987); and In re Rexel Inc., 223 USPQ
830 (TTAB 1984). Similarly, the word GAMES in applicant’s mark BAD JUJU
GAMES has been disclaimed as merely descriptive of “video game software.” Thus,
applicant’s mark incorporates the dominant element of registrant’s mark. The
question remaining is whether the addition of the word BAD to applicant’s mark is
sufficient to distinguish it from registrant’s mark.
The crux of applicant’s argument is that the combined slang term, BAD
JUJU, is more than just a combination of the adjective “BAD” and the noun
“JUJU”; rather, BAD JUJU “has its own particular meaning, and therefore its own
particular connotation or commercial impression that is different than the ‘mere’
JUJU term of Registrant’s mark.” Br. p. 5. The examining attorney, of course,
disagrees.
The examining attorney made of record the following definitions of JUJU: “a
type of magic from West Africa that uses objects that are believed to have special
powers” and “an object used in juju” ; “an object
superstitiously revered by certain W. African peoples and used as a charm or
fetish,” “the power associated with a juju,” “a taboo effected by a juju,” and “any
process in which a mystery is exploited to confuse people” ;
and “an object used as a fetish, a charm or an amulet in West Africa,” “the
supernatural power ascribed to such an object,” and “a style of popular Nigerian
music featuring electric guitars and traditional drums” . In
Serial No. 85976227
6

addition, we take judicial notice of the following definitions: “an object venerated
superstitiously and used as a fetish or amulet by tribal peoples of West Africa,” “the
magical power attributed to such an object” and “a ban or interdiction effected by it”
.4
Applicant made of record the following definitions of “BAD JUJU”: “an action
that is likely to be harmful 8in a ‘karmic’ way,” ,
“haunted by a bad vibe or aura,” and “harmful magical
power attributed to something or someone; a bad vibe or aura” .5
Based on this evidence, we conclude that BAD JUJU does not possess a
meaning separate and apart from JUJU; rather, BAD JUJU is simply a negative
variation of JUJU, just as “bad karma” and “bad luck” are negative variations of
“karma” and “luck”.
Applicant’s mark contains no other matter by which to distinguish it from
registrant’s mark. We acknowledge that the common term JUJU is the second word
in applicant’s mark; however, in this case we find that the word placement is not
sufficient to distinguish the marks in that the word BAD simply modifies the
common element JUJU and appears as a variant of JUJU.
Because of the identical, dominant term JUJU, which has no apparent
meaning relating to the goods, we conclude that the marks are very similar in

4 Dictionary.com (based on The Random House Dictionary (2013)). The Board may take
judicial notice of dictionary definitions, including online dictionaries with regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). 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).
5 The examining attorney also made of record the definition of “BAD JUJU” from
Dictionary.com.
Serial No. 85976227
7

sound, appearance, meaning, and commercial impression. In re Dixie Restaurants,
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (Court held that the
addition of “The,” “Cafe” and a diamond-shaped design to registrant’s DELTA mark
still resulted in a likelihood of confusion). Moreover, and in the same vein, we note
that there is no evidence of third-party trademark use of the term JUJU in
connection with similar goods.
In view of the foregoing, we find that, when applicant's mark and registrant's
mark are compared in their entireties, they are sufficiently similar in appearance,
sound, connotation and commercial impression that, if used in connection with
related goods, confusion would be likely to occur. As such, this du Pont factor favors
a finding of likelihood of confusion.
We conclude that consumers familiar with registrant’s “computer game
software for use on mobile and cellular phones,” offered under the mark JUJU
PLAY would be likely to believe, upon encountering applicant’s mark BAD JUJU
GAMES for “video game software for mobile devices, personal computers, and
consoles,” that the goods originated with or are somehow associated with or
sponsored by the same entity.
Decision: The refusal to register is affirmed.