Good Sports, Inc.

Trademark Trial and Appeal Board

Mar 13, 2009

No. 77168873 (T.T.A.B. Mar. 13, 2009)

Mailed: March 13, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Good Sports, Inc.
________

Serial No. 77168873
Filed: April 30, 2007
_______

Mario G. Ceste, Law Offices of Mario G. Ceste LLC for Good
Sports, Inc.

Karen K. Bush, Trademark Examining Attorney, Law Office 105,
Thomas G. Howell, Managing Attorney.
_______

Before Bucher, Walsh, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Applicant seeks registration of the mark LAUGHLIN RALLY
AT THE REGENCY (in standard characters) for “Clothing namely
tee shirts, sweat shirts, hooded sweats, tank-tops,
sleeveless shirts, hats, caps, underwear, jackets, bandanas,
gloves,” in International Class 25.1
Registration has been finally refused pursuant to
Trademark Act § 2(d), 15 U.S.C. § 1052(d), on the ground

1 Alleging first use as of April 16, 2005 and first use in
commerce as of March 26, 2007. Applicant claims ownership of
prior Registration No. 3267650 for RALLY AT THE REGENCY for
“clothing namely tee shirts, sweat shirts, hooded sweats, tank-
tops, sleeveless shirts, hats, caps, underwear, jackets,
THIS DECISION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77168873
2
that applicant’s mark so resembles the marks in the six
registrations set out below (all owned by the same entity)
as to be likely, if used on the identified goods, to cause
confusion, to cause mistake, or to deceive. Trademark Act
§ 2(d); 15 U.S.C. § 1052(d).
We affirm.
Reg. No. Mark Goods Use & Use In
Commerce
Issue Date
2219180 LAUGHLIN RALLY2 T-shirts, International Class 25. Apr. 16, 1996 Jan. 19, 1999
2860601 LAUGHLIN SPRING RALLY3 T-shirts, International Class 25.

Organizing and conducting a motorcycle rally,
International Class 41
April 2002 July 6, 2004
2916573 LAUGHLIN RALLY Jewelry; goods of precious metals their alloys and goods
coated therewith, namely, buckles, badges, cigarette
cases, brooches, charms, tie clips and clasps,
commemorative coins, non-monetary coins, cufflinks,
cups, commemorative plates, cups and mugs, figurines,
goblets, medallions, medals, pins; horological and
chronometric instruments, namely, watches, clocks,
stopwatches, and watch bands, International Class 14.

Photographs; stationery; playing cards; decals; stickers;
photographic albums; paper bags; bookmarks; calendars;
paper coasters; comic books; books, magazines,
newsletters and brochures all in the field of motorcycles,
motorcycle events and motorcycle rallies; paper flags;
folders; greeting cards; maps; modeling clay; note pads;
pens; pencils; post cards; fine art prints and artistic
posters; stencils; and printed tickets, International Class
16.

Lace trimming; embroidered patches for clothing; patches,
badges, pins and buttons for clothing; belt clasps,
brooches as accessories, not of precious metal and not as
imitation jewelry; clothing buckles; and prize ribbons,
International Class 26.
April 2002 Jan. 4, 2005

bandanas, gloves,” in International Class 25, registered July 24,
2007.
2 “RALLY” disclaimed. Post-registration filings under Trademark
Act §§ 8, 9, and 15, accepted, granted, and acknowledged.
3 Trademark Act § 2(f); “SPRING RALLY” disclaimed.
Serial No. 77168873
3
Reg. No. Mark Goods Use & Use In
Commerce
Issue Date
3077260 LAUGHLIN RIVER RALLY4 Photographs; stationery; decals; stickers; photographic
albums, paper bags; bookmarks; calendars, paper
coasters; comic books; books, magazines, newsletters
and brochures all in the field of motorcycles, motorcycle
events and motorcycle rallies; paper flags; folders;
greeting cards; maps, modeling clay; note pads; pens,
pencils, post cards; fine art prints and artistic posters;
stencils; and printed tickets, International Class 16.

Wearing apparel, namely, t-shirts, sweatshirts, tank tops,
woven shirts, sweaters, cardigans, vests, jackets, pants,
sweatpants, shorts, skirts, dresses, blouses, coats, belts,
and underwear; headgear, namely hats and caps;
footwear, namely, shoes, boots, and sneakers,
International Class 25.
Apr. 24, 2002

Apr. 25, 2001
Apr. 4, 2006
3169041 LAUGHLIN RIVER RALLY5 Lace trimming; embroidered patches for clothing; patches,
badges, pins and buttons for clothing; belt clasps,
brooches as accessories, not of precious metal and not as
imitation jewelry; clothing buckles; and prize ribbons,
International Class 26.

Entertainment and educational services, namely,
organizing and conducting motorcycle rallies, International
Class 41.
April 2001 Nov. 7, 2006
3181259 LAUGHLIN SPRING RALLY6 Photographs; stationery; playing cards; decals; stickers;
photographic albums; paper bags; bookmarks; calendars,
paper coasters; comic books; books, magazines,
newsletters and brochures all in the field of motorcycles,
motorcycle events and motorcycle rallies; paper flags;
folders; greeting cards; maps; modeling clay; note pads,
pens, pencils, post cards; fine art prints and artistic
posters; stencils; and printed tickets, International Class
16.

Lace trimming; embroidered patches for clothing; patches,
badges, pins and buttons for clothing; belts clasps,
brooches as accessories, not of precious metal and not as
imitation jewelry; clothing buckles; and prize ribbons,
International Class 26.
Apr. 24, 2002 Dec. 5, 2006

I. Applicable Law
Our determination under Trademark Act § 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). See also Palm

4 Trademark Act § 2(f) as to “LAUGHLIN;” “RIVER” and “RALLY”
disclaimed.
5 Trademark Act § 2(f) as to “LAUGHLIN;” “RIVER” and “RALLY”
disclaimed.
6 Trademark Act § 2(f).

Serial No. 77168873
4
Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003); In re Dixie Rests. Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997).
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 [or services] and
differences in the marks.” Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209
(TTAB 1999).
II. Discussion
In our likelihood of confusion analysis, we will focus
primarily on the three cited registrations identifying goods
in International Class 25, because the goods in those
registrations are closest to those identified in the subject
application. Those registrations are the ‘180 Registration
(LAUGHLIN RALLY), the ‘601 Registration (LAUGHLIN SPRING
RALLY), and the ‘260 Registration (LAUGHLIN RIVER RALLY).
A. The Similarity Or Dissimilarity And Nature Of The
Goods as Described in the Application.

The application on appeal identifies “clothing namely
tee-shirts, sweat shirts, hooded sweats, tank-tops,
Serial No. 77168873
5
sleeveless shirts, hats, caps, underwear, jackets, bandanas,
[and] gloves.” The cited registrations identify identical
goods, namely, t-shirts (‘180, ‘601, and ‘260
Registrations), and tank tops, hats, and caps (‘260
Registration).7
This factor strongly supports the examining attorney’s
refusal to register.
B. The Similarity Or Dissimilarity of the Marks.

In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay,
73 USPQ2d at 1692. We begin our comparison with the
observation that “[w]hen marks would appear on virtually
identical goods or services, the degree of similarity
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). As noted above, applicant’s goods are in part
identical to those identified in the cited registration and
are otherwise closely related.
Applicant’s mark is LAUGHLIN RALLY AT THE REGENCY,
while the marks in the cited registration are LAUGHLIN RALLY

7 The ‘260 Registration also identifies several other items of
clothing, all of which are closely related to applicant’s goods.

Serial No. 77168873
6
(‘180 Registration), LAUGHLIN SPRING RALLY (‘601
Registration), and LAUGHLIN RIVER RALLY (‘260 Registration).
It is readily apparent that applicant’s marks are highly
similar to these in the cited registrations in appearance,
sound, meaning, and overall impression.
Applicant argues that “LAUGHLIN RALLY” is descriptive.
App. Br. at 5-6. We disagree. Applicant’s argument is
essentially a collateral attack on the validity of the cited
registrations. “[W]e point out that this is an ex parte
proceeding, and applicant is not permitted to overcome a
refusal by arguing that a cited registration is merely
descriptive.” In re Fiesta Palms LLC, 85 USPQ2d 1360 (TTAB
2007), citing In re Dixie Rest. Inc., 41 USPQ2d at 1534-35.
While applicant argues that LAUGHLIN is descriptive of
Laughlin, Nevada, we note that the registrant’s trademarks
are registered on the Principal Register, one without a
claim of acquired distinctiveness (and “incontestable,”) and
two with claims of acquired distinctiveness as to the term
LAUGHLIN. There is thus no basis to consider the term
LAUGHLIN, as used in the cited marks to be anything other
than a distinctive mark for the identified goods.
Applicant correctly points out that the other terms in
the cited registrations appear to be descriptive (“RALLY,”
“SPRING RALLY,” and “RIVER RALLY” are disclaimed in the
Serial No. 77168873
7
cited registrations). While descriptive terms are typically
weak, and entitled to little weight in a likely of confusion
analysis, they must still be considered part of the mark.
In this case, we note the registrant’s consistent use of the
terms LAUGHLIN and RALLY in its six registrations covering a
variety of goods. These terms are, of course, identical to
the same terms used in applicant’s mark, and appear to be
used in the same way and carry the same meaning as they do
in the cited registrations.
Needless to say, we may not – and do not – ignore the
phrase “AT THE REGENCY” which applicant has appended to the
LAUGHLIN RALLY mark in the ‘180 Registration. Although this
phrase is clearly a difference between applicant’s mark and
those of the registrant, we find it subordinate to the terms
LAUGHLIN RALLY for two reasons: First, as we have
previously found, “it is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered.” Presto Prod., Inc. v. Nice-Pak
Prod. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); see also Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 73 USPQ2d at 1692 (“The presence of this strong
distinctive term as the first word in both parties’ marks
renders the marks similar, especially in light of the
Serial No. 77168873
8
largely laudatory (and hence non-source identifying)
significance of ROYALE.”).
Second, this phrase itself is suggestive and logically
subordinate to the initial terms LAUGHLIN RALLY. Rather
than carrying the impression of something wholly different,
“AT THE REGENCY” appears to merely suggest where the
LAUGHLIN RALLY may be found, or to suggest a particular
LAUGHLIN RALLY. While applicant’s mark thus appears to be
more specific than that of the ‘180 and other cited
Registrations, it nonetheless lends the overall impression
of referring to the same thing, i.e., the LAUGHLIN RALLY.
Finally, it is clear that applicant’s mark would be
pronounced very similarly to those of the cited registrant,
particularly the ‘180 Registration, in which the first terms
are identical.
Nonetheless, applicant points out its claim of
ownership of Registration No. 3267650 for RALLY AT THE
REGENCY for the same goods as listed in the current
application. Applicant claims that the mark in its ‘650
Registration forms the dominant portion of the mark in the
this application pursuant to a “tacking” theory, or
something like it.
Serial No. 77168873
9
To be clear, tacking is not an issue in this case,8 and
we must consider the mark before us, not the different one
in applicant’s prior registration. Applicant’s addition of
the term LAUGHLIN in the instant application – the main
point of similarity between applicant’s mark and the cited
registrant’s marks – makes applicant’s prior registration
irrelevant in considering whether the examining attorney has
demonstrated a likelihood of confusion vis-à-vis the
registrant’s marks. Simply put, applicant’s ownership of a
different registration does not entitle applicant to
registration of the mark at issue here.
Considered in their entireties, we find that
applicant’s mark is highly similar in appearance, meaning,
sound and commercial impression to the marks in the cited
registrations.
III. Conclusion
After careful consideration of the record evidence and
argument, we conclude that in light of the identical and
closely related goods, and the highly similar marks at
issue, use of applicant’s mark on or in connection with the

8 Tacking is a theory applicable in an inter partes case by which
priority may be established by use of the mark in a different
form. See generally 1 JEFFREY A. HANDELMAN, GUIDE TO TTAB PRACTICE
§ 13.12 (2008 & Supp.).

Serial No. 77168873
10
identified goods would pose a likelihood of confusion with
the marks in the cited prior registrations.
Decision: The refusal to register under Trademark Act
§ 2(d) is accordingly affirmed.