Full House Resorts, Inc.

Trademark Trial and Appeal Board

Jun 26, 2013

No. 85305971 (T.T.A.B. Jun. 26, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
June 26, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Full House Resorts, Inc.
_____

Serial Nos. 85305971 and 853059721
_____

Jordan A Lavine for Full House Resorts, Inc.

Kim Teresa Moninghoff, Trademark Examining Attorney, Law Office 113 (Odette
Bonnet, Managing Attorney).
_____

Before Quinn, Ritchie, and Greenbaum, Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Applicant, Full House Resorts, Inc., seeks registration on the Principal
Register of the marks THE LINKS RISING STAR CASINO (in standard characters)
and for services ultimately identified as “Entertainment in the
nature of golf tournaments provided at resorts and casinos; Golf club services

1 In view of the common issues and facts in these separate cases we are issuing our
determination as to each in a single decision.

Serial Nos. 85305971 and 85305972
2

provided at resorts and casinos; Organization of golf tournaments at resorts and
casinos; Providing golf facilities at resorts and casinos” in International Class 41.2
Registration has been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), on the ground that applicant’s mark, when used with its identified
goods, so resembles the registered mark RISING STAR (in standard characters) for
goods identified as:
Gloves for golf; Golf bag covers; Golf bag tags; Golf bags;
Golf bags with or without wheels; Golf balls; Golf club
bags; Golf club covers; Golf club grips; Golf club heads;
Golf club inserts; Golf club shafts; Golf clubs; Golf gloves;
Golf irons; Golf putter covers; Golf putters; Golf tees;
Hand grips for golf clubs; Head covers for golf clubs; Non-
motorized golf carts; Non-motorized golf trolleys; Trolley
bags for golf equipment
in International Class 28, as to be likely to cause confusion, mistake or deception.3
These appeals ensued following applicant’s unsuccessful requests for
reconsideration in each application.
When the question is likelihood of confusion, we analyze the facts as they
relate to the relevant factors set out in 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 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

2 Application Serial Nos. 85305972 and 85305971, respectively, both filed on April 27, 2011
under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). An Amendment to Allege
Use was filed and accepted in each application, alleging first use and use in commerce on
August 14, 2011.
3 Registration No. 4009398, issued on August 9, 2011.

Serial Nos. 85305971 and 85305972
3

and the similarities between the goods or services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to the du Pont factor of the similarities and dissimilarities
between applicant’s marks THE LINKS RISING STAR CASINO and
, and registrant’s mark RISING STAR. We must compare the
marks in their entireties as to appearance, sound, connotation and commercial
impression to determine the similarity or dissimilarity between them. 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. 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).
In comparing the marks, we note that applicant’s marks incorporate the
entirety of registrant’s mark. Likelihood of confusion is often found where the
entirety of one mark is incorporated within another. In re Denisi, 225 USPQ 624,
626 (TTAB 1985) (PERRY’S PIZZA for restaurant services specializing in pizza and
Serial Nos. 85305971 and 85305972
4

PERRY’S for restaurant and bar services); Johnson Publishing Co. v. International
Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY for cosmetics and
EBONY DRUM for hairdressing and conditioner); and In re South Bend Toy
Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB 1983) (LIL’ LADY
BUGGY for toy doll carriages and LITTLE LADY for doll clothing).
Applicant argues that the additional wording and/or design in its marks
distinguish its marks from the registered mark RISING STAR, and that the use of
the wording RISING STAR in its marks is intended to be a play on applicant’s
geographic location in Rising Sun, Indiana, which creates a different commercial
impression from registrant’s mark. We disagree.
We find that the term RISING STAR is the dominant element in each of
applicant's marks. The word LINKS, which is defined as a “golf course,” has been
disclaimed as merely descriptive of the subject matter of applicant's services.4 That
THE LINKS appears first in applicant’s marks does not make it any less
descriptive. As discussed below, when identifying a golf course, the term THE
LINKS often appears first, followed by the word AT and the name of the golf course.
Similarly, although the word CASINO does not directly describe applicant’s
services and has not been disclaimed, it has little source-indicating significance.
The record shows that casinos and golf resorts often are co-located,5 and applicant’s
amended recitation of services confirms that applicant provides its golf-related
services at “resorts and casinos,” which would include “golf resorts.” We therefore

4 The American Heritage Dictionary of the English Language (2011), and The Penguin
English Dictionary (2007), attached to June 27, 2011 Office Action.
5 See October 25, 2012 Office action (denial of Request for Reconsideration).
Serial Nos. 85305971 and 85305972
5

find that the inclusion of the word CASINO in applicant’s marks would lead
consumers to believe that applicant’s golf-related services are associated with a
casino.
With regard to Serial No. 85305971, which contains the design of a golf
course and clubhouse, it is well-established that the literal element of a mark tends
to be that which consumers will use to identify it, particularly where, as here, the
design merely serves to visually represent the literal terms. In re Max Capital
Group. Ltd., 93 USPQ2d 1243, 1247 (TTAB 2010); In re Appetito Provisions Co. Inc.,
3 USPQ2d 1553, 1554 (TTAB 1987). Although the term “LINKS” is in larger font,
we find, once again, that since it is descriptive of the services, it is not dominant.
Thus, these additional descriptive elements in applicant’s marks are entitled to less
weight in the likelihood of confusion analysis. See National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (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 when evaluating the similarities of the marks.).
We further find that the connotations of the marks are identical, and that
they create the same commercial impression of someone or something with growth
potential equally with regard to applicant’s golf tournaments as to registrant’s golf
equipment.6

6 See Merriam-Webster’s Online Dictionary (11th ed. 2102) , attached to October 22, 2012 Request for Reconsideration,
defining “rising star” as “a person or thing that is growing quickly in popularity or
importance in a particular field.”
Serial Nos. 85305971 and 85305972
6

Similarly, to the extent a potential consumer would understand that the
wording RISING STAR in applicant’s mark is intended to be a play on applicant’s
location in Rising Sun, Indiana, as applicant argues, there is nothing inherent in
the nature of registrant’s golf equipment that would prevent consumers from
making the same association with registrant’s goods.7 In this regard, we find
unpersuasive applicant’s argument that the wording “THE LINKS” commonly is
used with geographic wording such that consumers would assume that RISING
STAR in applicant’s mark refers to a geographic location. As the examining
attorney notes, RISING STAR does not identify a geographic location. Moreover,
the examining attorney submitted evidence showing that “links” and “the links”
refer to golf courses generally. The examining attorney also submitted printouts
from five websites showing that the word pattern THE LINKS AT _____ does not
narrow down the location where the golf course is located: The Links at Grand
Victoria Casino is located in Rising Sun, IN , The Links at
Cottonwoods is located in Tunica, MS , The Links at
Challedon is located in Mount Airy, MD , The Links at
Sierra Blanca is located in Ruidoso, NM , and The
Links at Outlook is located in South Berwick, ME .8
Applicant also references five third-party RISING STAR or RISING STAR-
inclusive registrations that it made of record during prosecution, arguing that the

7 We note that applicant states that its amended identification of services “mak[es] the
distinction that Applicant’s services are provided at its casinos in Rising Sun, Indiana.”
App. Br., p. 6. However, the amended identification of services contains no such limitation.
8 See October 25, 2012 Office action.
Serial Nos. 85305971 and 85305972
7

term RISING STAR is widely used for various goods and services, and therefore
entitled only to a narrow scope of protection. While the third-party registrations
may be used to show that a term has some significance in the industry such that
consumers would look to other elements of the mark to distinguish source, the goods
and services in those registrations (talent competitions, college level athletic and
sporting events, baseball camp, DVDs featuring episodes of comedy shows, and
trading cards) are different from those involved in this proceeding. Thus, they have
little probative value on this point. Moreover, five is hardly a convincing number of
third-party registrations on which to base a finding of weakness.
In view of the foregoing, we find that, when applicant's marks 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 and/or services, confusion would be likely to occur. As
such, this du Pont factor favors a finding of likelihood of confusion.
We turn next to the du Pont factor of the relatedness of the goods and
services. We base our evaluation on the goods and services as they are identified in
the registration and applications. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002).
Contrary to applicant’s assertions, the record supports a finding that
registrant’s goods are related to applicant’s services and often emanate from the
Serial Nos. 85305971 and 85305972
8

same source. The examining attorney submitted copies of approximately 30 use-
based, third-party registrations that include the types of goods identified in the
cited registration and the types of services recited in the involved applications. The
following are examples:
•Registration No. 3157168 for the mark ELCONA: “Golf
clubs, golf club covers, golf club bags, golf club grips,
heads, and shafts; golf balls, golf gloves, golf tees, non-
motorized golf carts,” in Class 28, and “golf club services,
golf courses, entertainment in the nature of golf
tournaments . . .golf club services, golf courses,
entertainment in the nature of golf tournaments,” in
Class 41;
•Registration No. 3148098 for the mark SUPERSTITION
MOUNTAIN: “goods, namely, golf gloves, golf balls, golf
clubs, golf bags, and non-motorized golf club carts,” in
Class 28, and “golf courses and instruction; . .
.entertainment, namely, providing golf . . . tournaments;
country club services, namely providing facilities for golf;
organizing and conducting golf tournaments; golf club
services and facilities, namely providing golf courses” in
Class 41;
•Registration No. 3270374 for a design mark: “Golf
balls, . . . , golf clubs, golf club bags, golf club covers, fitted
head covers for golf clubs, golf gloves, golf putters, golf
tees,” in Class 28, and “Golf and country club services,
namely, providing golf facilities, golf courses,
entertainment in the nature of golf tournaments,” in
Class 41;
•Registration No. 3586233 for the mark MONSTER:
“Golf head covers, golf balls, golf gloves,” in Class 28, and
“Golf course services; golf courses; entertainment in the
nature of golf tournaments,” in Class 41;
•Registration No. 3697677 for the mark ORANGE
COUNTY NATIONAL: “Golf bags, golf balls, and golf bag
accessories, namely, golf head covers,” in Class 28, and
“Providing golf course facilities; golf club services;
providing . . . entertainment in the nature of golf
Serial Nos. 85305971 and 85305972
9

tournaments; providing facilities for golf tournaments,” in
Class 41; and
•Registration No.4216510 for the mark TOPGOLF: “Bags
specially adapted for sports equipment; covers for golf
clubs; . . . golf bag tags; golf bags; . . . golf balls; . . .golf
gloves; golf tees; non-motorized golf carts; golf clubs,” in
Class 28, and “Entertainment in the nature of golf
tournaments; . . . golf courses; . . . providing golf facilities;
. . . entertainment services, namely, arranging and
conducting of golf competitions; golf club services,” in
Class 41.
These registrations suggest, in general, that applicant’s “golf tournaments,” “golf
club services” and “golf facilities” are related to various golf equipment listed in the
registration. See In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d 1214,
1217-18 (TTAB 2001). Although these registrations are not evidence that the
marks shown therein are in use or that the public is familiar with them, they
nevertheless have probative value to the extent that they serve to suggest that the
goods and services listed therein are of a kind which may emanate from a single
source. See, e.g., In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993); and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB
1988).
The examining attorney also submitted webpages from third-party websites
showing that the same companies offer the types of registrant’s goods and
applicant’s services under the same marks. In particular, Ko Olina Golf Club sells
bag tags, golf balls, and golf club head covers under the same mark as golf facilities
and tournaments as part of a resort , Lake of Isles uses the same
mark for golf balls and golf facility services, including golf course services offered to
Serial Nos. 85305971 and 85305972
10

junior golfers and families, provided in conjunction with a resort casino
, and Barona Creek Resort & Casino uses the same mark for golf
balls, bag tags, golf facilities and golf tournaments .9
Such evidence serves to demonstrate that third parties are using a single mark to
identify applicant’s types of services as well as registrant’s types of goods.
Based upon the evidence made of record by the examining attorney and the
nature of the goods and services themselves, we find that applicant’s services are
closely related to registrant’s goods.10 As a result, this du Pont factor also favors a
finding of likelihood of confusion.
With regard to the channels of trade, because the services are so closely
related, and there are no limitations in the identifications of the applications and
cited registration, we must presume that they are offered in the same channels of
trade, including pro shops located at golf facilities and golf clubs, to the same
classes of customers, including golfers of all ages and ability levels. Hewlett-
Packard Co., 62 USPQ2d 1001.
Moreover, and despite applicant’s arguments to the contrary, the evidence
supports this presumption. As the examining attorney aptly notes:
Providers of golf facilities and clubs also commonly
provide retail store services in the form of “pro shops” that
feature the types of goods listed in the registrant’s
identification. Thus, goods like the registrant’s would be
offered in the same locations as services like the
applicant’s to the same class of consumers, namely,

9 See October 4, 2011 and October 25, 2012 Office actions.
10 Applicant erroneously that the examining attorney “only” submitted 15 registrations.
The examining attorney submitted 30 registrations and excerpts from several websites,
many of which are mentioned in this decision.
Serial Nos. 85305971 and 85305972
11

golfers. Specifically, the applicant was provided evidence
from its own website indicating that it offers a pro shop in
conjunction with its services. [footnote omitted]. Rising
Star Casino Resort, Golf, the
http://www.risingstarcasino.com/golf (viewed on Apr-20-
2012, 07:08 EDT) (“Before or after your round peruse our
fully stocked pro shop . . . Visit our Pro Shop for golf
accessories and apparel.”). See Office action dated
04/20/2012, TSDR at 4-5. Thus, the applicant’s own
website contradicts the applicant’s claim that there is
“almost no setting in which a likely purchaser would
encounter the respective products and services in the
same trade channels.” Applicant’s Brief, at 5.11
Material obtained from applicant’s website is acceptable as competent evidence. See
In re N.V. Organon, 79 USPQ2d 1639, 1642-43 (TTAB 2006); In re Promo Ink, 78
USPQ2d 1301, 1302-03 (TTAB 2006); In re A La Vieille Russie Inc., 60 USPQ2d
1895, 1898 (TTAB 2001).
In addition, the examining attorney made of record examples of third-party
websites showing that the same source provides golf facilities and tournaments, and
pro shop services featuring golf equipment similar or identical to applicant’s goods.
This evidence includes the Mount Vernon Country Club, showing golf tournaments
and golf courses provided by the same source that offers a pro shop with “a broad
selection of bags, shoes, clubs and other golfing accessories” ;
the Dacotah Ridge Golf Club, showing golf course services provided by the same
source that offers a pro shop featuring “the latest golf fashions and accessories for
women, men and juniors,” and which also “carries the latest golf clubs, wedges and
golf balls” ; and the Twin Warriors & Santa Anna
Golf Courses, showing two marks used for golf courses and tournaments provided

11 Br., pp.18-19.
Serial N

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Serial Nos. 85305971 and 85305972
13

Decision: The refusal to register based on a likelihood of confusion under
Section 2(d) of the Trademark Act is affirmed in each application.