No. 91214390 (T.T.A.B. Dec. 9, 2015)

Golden Gaming, LLCv.PTT, LLC dba High 5 Games

Trademark Trial and Appeal BoardDec 9, 2015

No. 91214390 (T.T.A.B. Dec. 9, 2015)

This Opinion is not a Precedent of the TTAB Mailed: December 9, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Golden Gaming, LLC v. PTT, LLC dba High 5 Games _____ Opposition No. 91214390 _____ Lauri S. Thompson, Peter H. Ajemian, and Shauna L. Norton of Greenberg Traurig, LLP for Golden Gaming, LLC. Candice B. Hebden of High 5 Games for PTT, LLC. _____ Before Shaw, Masiello, and Goodman, Administrative Trademark Judges. Opinion by Masiello, Administrative Trademark Judge: PTT, LLC (“Applicant”) filed applications to register the two standard character marks set forth below for “game software,” in International Class 9: GOLDEN GAMES CASINO1 GOLDEN 5 CASINO2 1 Application Serial No. 85913432, filed on April 24, 2013 under Trademark Act Section 1(b), 15 U.S.C. 1051(b). Applicant disclaimed the exclusive right to use GAMES CASINO. 2 Application Serial No. 85913439, filed on April 24, 2013 under Trademark Act Section 1(b), 15 U.S.C. 1051(b). Applicant disclaimed the exclusive right to use CASINO. Opposition No. 91214390 2 Golden Gaming, LLC (“Opposer”) opposed registration of the marks on the ground that each mark, as intended to be used in connection with the identified goods, so resembles Opposer’s earlier used and registered marks as to be likely to cause confusion, mistake or deception under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); and on the ground of dilution under Section 43(c), 15 U.S.C. § 1125(c). Opposer pleaded ownership of the following thirteen U.S. registrations: Reg. No. Mark Goods/Services 3372386 GOLDEN GAMING Casinos 3372387 GOLDEN GAMING Restaurant and bar services; Cocktail lounges 4330834 Casinos and casino services; entertainment in the nature of theater productions, live music concerts, visual and audio performances, variety, and comedy shows; entertainment services, namely, providing community cultural events, art festivals, arranging for ticket reservations for shows and other entertainment events; cabarets; night club services; gymnasiums; health club services, namely, providing instruction and equipment in the field of physical exercise; providing facilities for recreation activities; providing facilities for gaming tournaments; special event planning Opposition No. 91214390 3 4367002 Resort hotels, resort lodging services, hotels, restaurant, bar and cocktail lounge services; tavern services; hotel, restaurant and bar services featuring customer loyalty programs that provide hotel, restaurant and bar benefits to reward repeat customers; cafeterias; snack bars; catering; providing banquet and social function facilities for special occasions; providing convention facilities; providing facilities for exhibitions; providing travel agency services, namely, making reservations and bookings for temporary lodging and entertainment in the nature of restaurants and meals; providing hotel and dining information via the Internet 3205888 GOLDEN CASINO GROUP Casino services 3205891 GOLDEN CASINO GROUP Restaurant, bar and cocktail lounge services 3205892 GOLDEN TAVERN GROUP Casino services 3205894 GOLDEN TAVERN GROUP Restaurant, bar and cocktail lounge services 4402469 Slot route operator of gaming devices for bars, taverns, restaurants, convenience and grocery stores; hotel, restaurant and bar services featuring customer loyalty programs that provide hotel, restaurant and bar benefits to reward repeat customers Opposition No. 91214390 4 4330836 casino services; operation of a gaming machine players club; entertainment services, namely, contest and incentive award programs designed to reward participants who play casino games; providing facilities for gaming tournaments; special event planning 3764507 GOLDEN BAD BEAT Card games 3747592 GOLDEN BAD BEAT Casinos 3131570 GOLDEN REWARDS Casino services, namely, operation of a gaming machine players club Applicant, in its answer, denied the salient allegations of the notice of opposition. The case is fully briefed. I. The record. The record includes the pleadings and, by operation of Trademark Rule 2.122, 37 C.F.R. § 2.122, the application files for the opposed marks. Opposer has made of record the following testimony and evidence: - Testimony deposition of Matt Flandermeyer, Opposer’s Chief Financial Officer and Vice President of Business Development, and exhibits thereto (22 TTABVUE; confidential pages at 18 TTABVUE). - Testimony deposition of Ross Gdovin, Opposer’s Vice President of Marketing, and exhibits thereto (26 TTABVUE; confidential pages at 19 TTABVUE). - Notices of reliance on: - Status and title information regarding Opposer’s 13 pleaded registrations, from the records of the USPTO (12 TTABVUE). Opposition No. 91214390 5 - Applicant’s responses to requests for admission (13 TTABVUE). - Copies of 44 third-party registrations (9 TTABVUE). - USPTO records relating to Opposer’s applications to register GOLDEN CASINO, including office actions issued against Opposer (10 TTABVUE, Exhibits N-S). - Copies of specimens of use underlying Opposer’s pleaded registrations (10 TTABVUE, Exhibits A-M). - Copies of Internet materials (11 TTABVUE). Applicant has filed notices of reliance on the following materials: - Internet materials showing advertisements of Applicant under its HIGH 5 marks (16 TTABVUE). - Copies of Opposer’s written responses to requests for document production (15 TTABVUE).3 - Copies of third-party registrations and records of third- party applications (14 TTABVUE). II. Standing. Opposer has properly made of record its pleaded registrations and has thus established its standing to oppose registration of Applicant’s marks. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). 3 Although the notice of reliance refers to Opposer’s responses to interrogatories, the exhibit attached to the notice of reliance consists of responses to document requests. Opposition No. 91214390 6 III. Opposer’s claim under Section 2(d). We first address Opposer’s claim under Trademark Act Section 2(d) on the ground of likelihood of confusion. For the sake of economy, we will confine our analysis to the issue of likelihood of confusion between Applicant’s marks and Opposer’s three registered marks GOLDEN GAMING, GOLDEN GAMING CASINOS SLOT MANAGEMENT TAVERNS (and design) and GOLDEN CASINO GROUP, as applied to casino services. Of all the pleaded marks, these marks are the most similar to Applicant’s marks, inasmuch as each of the other pleaded marks contains additional points of difference as compared to Applicant’s marks. Similarly, Opposer’s casino services are, at least facially, more likely to be related to Applicant’s game software than Opposer’s other services. If the opposition cannot be sustained on the basis of these marks and services, it could not be sustained on the basis of the other pleaded marks and services. Further, the parties have focused virtually all their arguments on a comparison of Applicant’s goods with Opposer’s casino services. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). In view of Opposer’s ownership of valid and subsisting registrations of its pleaded marks, priority is not in issue with respect to the marks and the services identified in the registrations. King Candy, Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Our determination of likelihood of confusion is based on an analysis of all probative facts in evidence that are relevant to the factors set forth in In re E. I. Opposition No. 91214390 7 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). A. The marks. We must consider the similarity or dissimilarity of the marks at issue in their entireties as to appearance, sound, connotation and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). First we will compare Applicant’s mark GOLDEN GAMES CASINO with Opposer’s marks GOLDEN GAMING and the composite mark shown below: We note the substantial similarity in appearance, sound and meaning between GOLDEN GAMES and GOLDEN GAMING. The addition of the word CASINO in Applicant’s mark creates little distinction between the two standard character marks. Rather, it suggests a stronger link to Opposer’s mark, which is used for casino services. Moreover, when we compare Applicant’s mark to Opposer’s Opposition No. 91214390 8 composite mark, the similarity in appearance, sound and meaning between GOLDEN GAMES CASINO and the wording GOLDEN GAMING CASINOS is striking. The design elements of Opposer’s composite mark, including the image of a ram, are distinguishing features as between this mark and Applicant’s mark. However, we bear in mind that Applicant seeks to register its mark in standard characters, such that it would not be limited to any particular form of display, Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983), and could be displayed in a manner resembling Opposer’s composite mark (for example, with CASINO in small letters below GOLDEN GAMES in larger letters). While there are some differences in appearance, sound and meaning between Applicant’s mark and the two marks of Opposer under discussion, the similarities between the parties’ respective marks vastly outweigh the differences. We find that Applicant’s mark and these two registered marks of Opposer create extremely similar commercial impressions overall. Next we will compare Applicant’s mark GOLDEN 5 CASINO with Opposer’s mark GOLDEN CASINO GROUP. The marks are similar in appearance, sound and meaning insofar as each mark combines the words GOLDEN and CASINO, in the same order. The word GROUP in Opposer’s mark creates some distinction in appearance and sound, but it does not give rise to any substantial distinction in meaning, as compared to Applicant’s mark, because GROUP is a common name for a business entity, applicable to virtually all businesses. The term 5 in Applicant’s mark does create some distinction between the marks in appearance, sound and Opposition No. 91214390 9 meaning. Overall, despite the noted differences between the marks, we find that they create very similar commercial impressions. B. The goods and services. We next consider the similarity or dissimilarity of the goods and services at issue as they are identified in the applications and registrations at issue. See Octocom Sys. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Applicant seeks to register its marks for “game software.” Opposer’s pleaded registrations cover, among other services, “casino services.” The goods and services do not have to be identical or even competitive in order to find that there is a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010). Rather, it is sufficient that they be related in some manner or that the circumstances surrounding their marketing are such that they would be encountered by the same persons in situations that would give rise, because of the marks, to a mistaken belief that the goods originate from the same source or that there is an association or connection between the sources of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). “Game software” includes within its scope software for the types of games that are played in casinos. Indeed, Applicant’s brief states that Applicant “has been creating Opposition No. 91214390 10 game software for casino games since 1995.”4 An article from Applicant’s website indicates that Applicant provides games described as “slots” and “video poker.”5 The evidence also shows that Applicant makes its game software available to third- party online casinos, including the online casino located at , which is operated by the conventional casino The Golden Nugget of Atlantic City and Las Vegas: High 5 Games, a leading game creator for the land-based, web-based and social casino markets, has just launched with GoldenNuggetCasino.com, with ten games approved for release. H5G partnered with Landry’s Golden Nugget, Inc. to bring its premium VAULT Remote Gaming Server products to GoldenNuggetCasino.com in New Jersey. Golden Nugget is High 5 Games’ third iGaming partner in New Jersey. This initial game launch includes a selection of High 5 Games most popular slot titles … The integration of VAULT into GoldenNuggetCasino.com will continue to make High 5 Games’ premium content even more accessible to online players in New Jersey. … The Golden Nugget Atlantic City … is a premier resort destination, offering guests more than 740 rooms and suites. The entire property … has taken on a fresh, modern look to include a high-energy casino featuring the most popular slot and video poker machines, table games, and poker room; … The Golden Nugget has already established strong brand recognition worldwide with locations in Las Vegas and Laughlin, NV and Biloxi, MS.6 Applicant refers to its online sites as “casinos” and “social casinos”: 4 Applicant’s brief at 2, 28 TTABVUE 6. 5 16 TTABVUE 11. See also id. at 15 (“High5Casino.com features over 100 authentic slots and video poker, and is a top-rated social casino application available for play on desktop and mobile devices.”). 6 16 TTABVUE 19-20. Opposition No. 91214390 11 High 5 Games operates the highest rated social casino on Facebook (High 5 CasinoTM, with over 10MM installs) and the largest Asian-themed social casino (Shake the Sky CasinoTM, with over 500 thousand monthly players).7 Applicant’s advertising makes clear that it offers its goods directly to individual players: The #1 Play-for-Fun Casino App Around. … Play Now on Your Mobile Device Send the download link to your iPad or iPhone8 Finally, we note that Applicant has admitted that it “use[s], or intend[s] to use, Applicant’s Marks in connection with casino services and/or online casino services.”9 Opposer argues that Applicant’s game software is often used in conjunction with slot machines and other electronic casino games that are placed in brick and mortar casino establishments, including those that compete with Opposer.”10 However, the evidence cited by Opposer does not support this contention.11 Nonetheless, the software that operates the gaming machines found in conventional casinos is, logically, within the scope of “game software” identified by Applicant. To demonstrate that casino services are related to game software, Opposer has made of record numerous third-party registrations that cover these goods and services. See 9 TTABVUE, Exhibits A-RR. Third-party registrations that are based 7 16 TTABVUE 12. 8 16 TTABVUE 8-9. 9 Applicant’s response to request for admission No. 3, 13 TTABVUE 8. 10 Opposer’s brief at 17. See also id. at 8-9. 24 TTABVUE 24, 15-16. 11 Opposer appears to rely on the evidence at 16 TTABVUE 10-12. Opposition No. 91214390 12 on use in commerce and which individually cover a number of different goods and services may have some probative value to the extent that they serve to suggest that the listed goods and services are of types which may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). However, most of the registrations submitted by Opposer were not issued on the basis of use. Only the registrations in Exhibits G, H, K, Q, W, JJ, KK, and NN were based on use. These 8 registrations are owned by 5 different owners. Opposer argues: Even if the Board were to find that casino services and game software are not sufficiently related, Opposer’s natural zone of expansion under its … marks includes online gaming. Further, Applicant’s natural zone of expansion includes online gaming. Therefore, Opposer has senior rights under its … marks not only for casinos and casino services, but also for online gaming, which is an area to which consumers would naturally expect a casino operator to expand.12 There is no need for us to address priority of right as between the parties in the field of online gaming, because Applicant does not seek to register its marks for online gaming. However, for purposes of determining the relatedness of the goods and services at issue, the evidence shows some link between online gaming and both casinos and game software. As discussed above, the evidence shows that Applicant’s software is of a type that is featured on online gaming websites; and there is evidence that at least one conventional casino, The Golden Nugget, makes 12 Opposer’s brief at 17, 24 TTABVUE 24. Opposition No. 91214390 13 use of game software and plans to offer it on its online gaming site. Moreover, the press has noted a proposed arrangement whereby Opposer would promote a third- party “online poker room” to its own casino customers.13 Although the evidence is not extensive, we find it sufficient to indicate that there is a commercial relationship between game software and casino services. Game software is one of the forms of entertainment offered in casinos. A number of business entities have registered trademarks for use in connection with both casinos and game software. To the extent that casino services can be legally offered over the internet, game software would be a featured component of such services. Applicant’s admission that it has an interest in providing casino or online casino services and Applicant’s involvement with a conventional casino in an online enterprise exemplify the commercial relatedness between Applicant’s goods and Opposer’s services. Accordingly, we find the goods and services at issue sufficiently related that, if both were offered under a single distinctive mark, customers would likely perceive a connection between them. C. The strength or weakness of Opposer’s marks. Applicant contends that the term GOLDEN is weak as a source identifier: Applicant’s Mark and Opposer’s Mark share the word “GOLDEN” and this overlap is insufficient to find a likelihood of confusion where GOLDEN is diluted, weak, and or descriptive in the casino goods and services. … 13 “Golden Gaming, 888 and Treasure Island Receive a Rubber Stamp from the NGC,” at , 11 TTABVUE 7-8. We bear in mind that the truth of any statements made in the article is not established, as the article is hearsay. We entertain this article only to the extent that it demonstrates that a journalist has contemplated the concept of an alliance between a casino and an online poker room. Opposition No. 91214390 14 [T]he word “GOLDEN” in casino and game software goods and services is largely laudatory and hence non-source identifying. … Gold, a form of money, also carries a descriptive characteristic when used for casino goods and services where consumers can win their gold or money. If the common element of two marks is “weak” in that it is generic, descriptive, or highly suggestive of the named goods or services, it is unlikely that consumers will be confused unless the overall combinations have other commonality.14 Applicant has made of record a large number of third-party registrations of marks that include the term GOLDEN, including 18 registrations that cover casino services, 36 registrations that cover gaming software, and 89 registrations that cover gaming machines.15 The Federal Circuit has stated that evidence of third- party registrations is relevant to show that “some segment that is common to both parties’ marks may have a ‘normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak,’ …” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015), quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015). “The weaker an opposer’s mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Juice Generation v. GS Enters., 115 USPQ2d at 1674. 14 Applicant’s brief at 5-6, 28 TTABVUE 9-10. 15 14 TTABVUE. Opposition No. 91214390 15 The third-party registrations of record are sufficient to demonstrate that GOLDEN has a suggestive meaning in the fields of casinos and gaming software. We do not subscribe to Applicant’s contention that GOLDEN is descriptive of a feature of “casino goods or services.” Contrary to Applicant’s suggestion, there is no evidence that casino customers gamble with gold or receive their winnings in gold. Nor is there any evidence as to laudatory use of the word GOLDEN in the relevant fields. Nonetheless, we find that GOLDEN is suggestive of wealth, which is an aspiration of customers of casinos and wagering games.16 Applicant also seeks to suggest that the combination of the words GOLDEN and CASINO in trademarks is similarly weak.17 We find that there are in the record 3 such registrations, belonging to two different owners, for casinos or game software:18 Reg. No. Mark Services 3297550 GOLDEN GULCH CASINO Casino services. 3312014 GOLDEN GATES CASINO & POKER PARLOUR Casino services. 4018578 GOLDEN WEST CASINO Casino gaming; providing casino services. 16 Among the definitions of the word “golden” we note “7 : constituting or yielding wealth : PROFITABLE … 8 : highly favorable : opportunely advantageous …” 975 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993). The Board may take judicial notice of dictionary definitions. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). 17 Applicant’s brief at 7, 28 TTABVUE 11 (“Further, Applicant has attached registrations for marks containing the words GOLDEN and CASINO by multiple owners …”). 18 14 TTABVUE 754-7, 787-9. Opposition No. 91214390 16 We find such evidence insufficient to show that the combination of GOLDEN with CASINO has a “normally understood and well-recognized descriptive or suggestive meaning” in the field of casinos. This conclusion is buttressed by the fact that in each of the three marks, other wording intervenes between the words GOLDEN and CASINO, substantially altering the commercial impression arising from the mark and from its constituent words. As part of a du Pont analysis, we consider “[t]he number and nature of similar marks in use on similar goods.” 177 USPQ at 567. Third-party registrations of the type submitted by Applicant do not alone demonstrate that the registered marks are actually in use in the marketplace. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973). Accordingly, they are not capable of demonstrating “that customers have been educated to distinguish between different marks on the basis of minute distinctions.” Jack Wolfskin v. New Millennium, 116 USPQ2d at 1136. The record contains little evidence of third-party casinos actually operating under marks that include the term GOLDEN. There is mention on Applicant’s website of The Golden Nugget casinos in Las Vegas and Atlantic City.19 Opposer’s witness testified that Opposer operated two casinos called Golden Gates Casino and Golden Gulch Casino between 2004 and 2012,20 before selling them to another entity called Affinity Gaming.21 However, we find no evidence (and Applicant has pointed to none) showing that these casinos continued 19 16 TTABVUE 20, 22. 20 Gdovin, 26 TTABVUE 26. 21 Id., 26 TTABVUE 26-27. Opposition No. 91214390 17 to operate under marks that included the term GOLDEN after Opposer sold them. On this record, we find no substantial evidentiary basis for determining that the term GOLDEN is commercially weak as a result of widespread exposure of relevant customers to numerous third-party marks that include this term. D. Other du Pont factors. The parties have made little evidence of record with respect to other du Pont factors, although the briefs make reference to a number of them. With respect to trade channels, Opposer submitted testimony as to the media through which it advertises; however, the only information that we have as to the trade channels of Applicant indicates that Applicant advertises its goods over the internet. To the extent that both parties utilize the internet for marketing, there is an overlap. There is evidence, as discussed above, that both parties have dealings with online gaming businesses, but it indicates that the parties are differently positioned with respect to this channel: Applicant intends to make its goods available on online casino websites, whereas Opposer has arranged to promote such online casinos to its customers. Opposer has argued that Applicant’s goods are present in casinos; however, this contention is not supported by evidence. However, as we have noted, Applicant’s goods include software of the type that is used in casino games. The advertising of both parties appears to be directed, at least in part, to ordinary consumers. Nothing in the record compels us to conclude that the same consumers who visit casinos also make use of game software. At best, we can assume that some Opposition No. 91214390 18 subset of ordinary consumers do both. There is no meaningful evidence relating to the conditions under which either party makes its sales. Opposer has argued that its marks constitute a family of marks and that its marks are famous. The evidence is insufficient to substantiate either of these contentions. E. Balancing the factors. We have considered all of the evidence of record and all arguments of the parties relevant to the issues before us, including those not specifically discussed herein. We have found Applicant’s mark GOLDEN GAMES CASINO to be extremely similar to several of Opposer’s pleaded marks, and we have found Applicant’s mark GOLDEN 5 CASINO to be very similar to another pleaded mark of Opposer. We have found the parties’ goods and services to be sufficiently related that, if both were offered under a single distinctive mark, customers would likely perceive a connection between them. The factors of overlapping trade channels and customer classes support, in only a very minor way, a determination of likelihood of confusion. Applicant has demonstrated weakness of the term GOLDEN in the relevant fields; but has not demonstrated that the two-word combinations GOLDEN GAMING and GOLDEN CASINO are weak. In light of the extremely strong similarity between Applicant’s mark GOLDEN GAMES CASINO and Opposer’s mark GOLDEN GAMING; and in light of the fact that all of the wording of Applicant’s mark appears in only slightly altered form in Opposer’s composite mark which includes the wording GOLDEN GAMING Opposition No. 91214390 19 CASINOS (i.e., Reg. No. 4330834), we find that, despite the demonstrated weakness of GOLDEN, Applicant’s mark, as used in connection with the identified goods, so closely resembles Opposer’s marks as to be likely to cause confusion, mistake or deception as to the source of Applicant’s goods. With respect to Applicant’s mark GOLDEN 5 CASINO, we find that, because of the weakness of the designation GOLDEN in the relevant fields, a likelihood of confusion has not been shown. Accordingly, Opposer’s claim on the ground of likelihood of confusion will be sustained in part and dismissed in part. IV. Opposer’s claim of dilution. We turn next to Opposer’s claim that Applicant’s mark is likely to dilute the distinctive qualities of Opposer’s marks, under Trademark Act § 43(c), 15 U.S.C. § 1125(c). In order to prevail on a dilution claim, a plaintiff must, among other things, show that it owns a famous mark that is distinctive. Id.; see also Coach Services Inc. v. Triumph Learning LLC, 101 USPQ2d at 1723-24. “Fame for likelihood of confusion and fame for dilution are distinct concepts, and dilution fame requires a more stringent showing.” Id. at 1724. Inasmuch as we have found, infra, that Opposer has failed to demonstrate the fame of its marks for purposes of Opposer’s claim of likelihood of confusion, Opposer has also failed to meet the more stringent test of fame for purposes of a claim of dilution. As Opposer cannot demonstrate, on this record, a required element of its claim, we dismiss Opposer’s claim under Section 43(c). Opposition No. 91214390 20 Decision: The opposition is SUSTAINED with respect to Application Serial No. 85913432, on grounds of likelihood of confusion under Trademark Act Section 2(d). The opposition is DISMISSED with respect to Application Serial No. 85913439, on grounds of likelihood of confusion under Trademark Act Section 2(d). The opposition is DISMISSED as to Opposer’s claim under Trademark Act Section 43(c).