HMS Motorsports, LLC

Trademark Trial and Appeal Board

Dec 21, 2020

88298297 (T.T.A.B. Dec. 21, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 21, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re HMS Motorsports, LLC
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Serial Nos. 88298286 & 882982971
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Susan S. Jackson of Nelson Mullins Riley & Scarborough LLP,
for HMS Motorsports, LLC.

Alex Keam, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
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Before Shaw, Lynch, and Coggins,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

1 Because the applications have common questions of fact and law, and have similar records,
the appeals are hereby consolidated. See, e.g., In re Anderson, 101 USPQ2d 1912, 1915 (TTAB
2012) (Board sua sponte consolidated two appeals). Citations to the TSDR and TTABVUE
record are to Application Serial No. 88298297, except where otherwise indicated.
Serial Nos. 88298286 & 88298297
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I. Background
HMS Motorsports, LLC (“Applicant”) seeks registration on the Principal Register
of the marks 24 in standard characters2 and ,3 both for “lottery tickets;
holders specially adapted for lottery tickets; lottery wheels; lottery cards; scratch
cards for playing lottery games; pull-tabs for playing lottery games” in International
Class 28 and “lottery services; online lottery services” in International Class 41.
The Examining Attorney refused registration in both applications under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of confusion
with the registered mark 24 in typed form for “equipment sold as a unit for playing a
numbers game” in International Class 28.4 Once the Examining Attorney made the
refusals final, Applicant requested reconsideration and appealed. After the
Examining Attorney denied reconsideration, the appeals resumed and both have been
briefed.
For the reasons set forth below, we affirm the refusal to register in both appeals.

2 Application Serial No. 88298286 was filed February 12, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in
commerce.
3 Application Serial No. 88298297 also was filed February 12, 2019, under Section 1(b) of the
Trademark Act. This application includes the following description: “The mark consists of the
number ‘24’ in stylized form.” Color is not claimed as a feature of the mark.
4 Registration No. 1718364 issued on September 22, 1992, and has been renewed.
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II. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Two key considerations are the
similarities between the marks and the relatedness of the goods and services. See In
re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) ;
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”).
A. Similarity of the Marks
We first compare Applicant’s marks to the cited mark “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay Imps. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). The registered mark is
identical to Applicant’s standard character mark, and legally identical to Applicant’s
stylized mark. The marks are visually legally identical, would all be pronounced the
same, and share the same meaning and commercial impression.
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The registered mark is in typed form, which is the predecessor to, and legal
equivalent of, a standard character mark. See In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1909 n.2 (“until 2003, ‘standard character’ marks formerly were
known as ‘typed’ marks.”); see also 37 C.F.R. § 2.52(a) (referring to “Standard
character (typed) drawing”). Thus, the cited mark is the same as Applicant’s standard
character mark. And because the cited typed form mark could appear in any font,
including the same one used in Applicant’s stylized , it is legally identical
to Applicant’s stylized mark as well. See Viterra, 101 USPQ2d at 1909 (Fed. Cir. 2012)
(holding that the specific font style of a mark cannot serve as the basis to distinguish
it from a mark in standard character form); Citigroup Inc. v. Capital City Bank Grp.
Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (registrant “entitled to
depictions of the standard character mark regardless of font style, size, or color ”).
Thus, the stylization cannot serve as a point of distinction, and we therefore find
unpersuasive Applicant’s argument that this font distinguishes the marks because it
would be recognizable as a motorsports racing number, allegedly associated with
William Byron. As an initial matter, Applicant offered no evidence to support this
argument about consumer recognition,5 and “[a]ttorney argument is no substitute for
evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed.
Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed.

5 Providing only a link does not suffice to make Internet materials of record. In re Change
Wind Corp., 123 USPQ2d 1453, 1462 n.8 (TTAB 2017); In re Olin, 124 USPQ2d 1327, 1331
n.15 (TTAB 2017).
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Cir. 2005)). However, even if we gave Applicant’s argument credence, the cited mark
could be presented in the same font and thus garner the same consumer recognition.
The marks are visually and phonetically identical and create the same connotations
and commercial impressions.
Applicant also contends that the cited mark “brings to mind the objective of a
children’s learning game,”6 and therefore it creates a different meaning and
impression than the identical term in Applicant’s marks. Applicant’s Brief includes a
web address (presumably to Registrant’s website),7 but the underlying website is not
in the record, and Applicant points to no evidentiary support for its argument about
the connotation or impression. Moreover, we find Applicant’s arguments
unpersuasive, as we would any evidence of the allegedly more limited goods or
services on or in connection with the marks at issue are used. We cannot consider
alleged marketplace realities not reflected in the identifications of goods and services.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (affirming Board finding that where the identification is unrestricted, “we must
deem the goods to travel in all appropriate trade channels to all potential purchasers
of such goods”). The identifications in the applications and registration at issue do
not include the limitations argued by Applicant, and so they are irrelevant. In the
contexts of the identified goods and services, we find that consumers would attribute

6 7 TTABVUE 9 (Applicant’s Brief); see also October 29, 2019 Response to Office Action at 1.
7 See supra n.5.
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the same meaning to, and derive the same impression from, the identical term, 24, in
Applicant’s marks as they would in the cited mark.
Given the resemblance in sound, appearance, connotation and commercial
impression, we find Applicant’s marks legally identical to the cited mark. This factor
weighs heavily in favor of a likelihood of confusion.
B. The Goods and Services
“[L]ikelihood of confusion can be found ‘if the respective products [and services]
are related in some manner and/or if the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that they emanate from the
same source.’” Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1722 (Fed. Cir. 2012) (internal citations omitted). Indeed, in the present case
involving identical and legally identical marks, the degree of relatedness of the goods
and services required to support a finding of likelihood of confusion declines. In re
Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-89 (Fed. Cir. 1993). “[I]t is
sufficient for finding a likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods [or services] within a particular class
in the application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015);
see also Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981).
In analyzing the second DuPont factor, we look to the identifications in the
applications and cited registration. See Stone Lion Capital Partners v. Lion Capital
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LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v.
Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
1. Applicant’s Goods
The Examining Attorney contends that the goods in the cited registration
encompass Applicant’s goods, and that Applicant’s services may use or feature
Registrant’s goods, so as to cause likely consumer confusion. Specifically, she asserts
that “equipment sold as a unit for playing a numbers game” encompasses Applicant’s
identified lottery tickets and holders, lottery wheels, lottery cards, and pull-tabs for
playing lottery games. The Examining Attorney submitted evidence that a lottery is
a type of “numbers game,” such as:
 The Massachusetts Lottery website lists “The Numbers Game” among the list
of “Lottery Games,” and explains that “The Numbers Game is the oldest game
still offered by the Massachusetts Lottery….[T]he Lottery’s Numbers Game
gives players an opportunity to select their numbers, the type of bet, the length
of time and dollar amount (beginning at $.25) they would like to play….[T]he
Lottery acquired the most sophisticated computer betting terminals on the
market at that time. These terminals were replaced in 1997.”8
 A headline from a Sun News article reads “Lottery’s Number Game Starts in
South Carolina,” describing the start of “the state’s first number -picking

8 TSDR April 30, 2019 Office Action at 3-5 (masslottery.com).
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lottery game,” with one lottery official noting that “[c]ustomers have asked
about the kickoff of numbers games since scratch tickets began selling.”9
 An article from the Cleveland Plain Dealer discusses the Ohio Lottery and
refers to “the Pick 3 daily number game.”10
 An article in The New Republic, titled “The Numbers Game,” discusses
lotteries and notes, “In addition to several forms of the traditional numbers
games (Lotto, Pick Three, Pick Six, etc.), all thirty-eight lotteries now sell
instant scratch-off tickets, thirty-three have instant bingo games, eight run
Fast Keno (a casino-like video game, with drawings every five minutes) and
five run video slot machines (VLTs).”11
 The Wikipedia entry for “Numbers game” describes its origins as “a form of
illegal gambling or illegal lottery” that later was incorporated into legal state
lotteries, such as those in New York and Pennsylvania.12
 The Encyclopedia Britannica entry for “Numbers game” describes it as “the
most widespread lottery game in the United States before lottery games were
legalized in many states.”13

9 TSDR November 20, 2019 Denial of Reconsideration at 40 (advance.lexis.com).
10 Id. at 48 (advance.lexis.com).
11 TSDR April 30, 2019 Office Action at 6, 11 (newrepublic.com).
12 TSDR November 20, 2019 Denial of Reconsideration at 2, 5 (wikipedia.org).
13 Id. at 23 (britannica.com).
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 The thesaurus.com website offers synonyms for “numbers game,” “as in
lottery,” and lists “numbers game” as a synonym for “lottery.”14
 The New York State Lottery website promotes its “3-digit Lottery game” called
“NUMBERS,” “where you play your favorite numbers your way.”15
 The Rhode Island Lottery website promotes “The Rhode Island Lottery’s daily
Numbers game, which started in 1976, [and] became the first Rhode Island
Lottery game that allowed players to select their own numbers, hoping to
match the randomly drawn numbered balls.”16
 The South Carolina Education Lottery offers a “Glossary of Lottery Terms” on
its website, defining “Numbers game” in part as “any lottery game where
winners are determined by a random selection of numbers.”17
We agree that the evidence shows that a “numbers game” is a type of lottery, such
that Registrant’s identified equipment for a numbers game encompasses lottery
equipment. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB
2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”); see also Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025
(TTAB 2015) (where the goods in an application or registration are broadly described,
they are deemed to encompass all the goods of the nature and type described therein).

14 Id. at 29-30 (thesaurus.com).
15 Id. at 13 (nylottery.ny.gov).
16 Id. at 20 (rilot.com).
17 Id. at 32-33 (sceducationlottery.com).
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Because “equipment” is “anything kept, furnished, or provided for a specific
purpose,”18 numbers game equipment can include items such as lottery tickets, cards,
wheels, and pull-tabs, such as those in Applicant’s identifications. One article
highlights the synonymous nature of numbers game equipment and lottery
equipment, noting of the South Carolina Lottery’s implementation of a numbers game
that “[s]ome stores haven’t gotten the equipment and will miss the numbers game
kickoff.”19 Applicant points out that its goods are not sold “as a unit,” as specified in
the cited registration, but we find this argument unpersuasive. Nothing in
Applicant’s identifications of goods limit its lottery equipment from being sold as a
unit. We find that Applicant’s Class 28 goods overlap with Registrant’s Class 28
goods, and therefore are considered legally identical.
2. Applicant’s Services
Turning next to Applicant’s Class 41 services, the Examining Attorney contends
that the services are related to the numbers game equipment in the cited
registration20 because providers of lottery services also provide lottery equipment for
use in connection with their games. For example, the South Carolina Education
Lottery’s online Glossary of Lottery Terms defines “terminal” as “[a] computerized

18 We take judicial notice of the dictionary.com entry for “equipment,” sourced from the
Random House Dictionary, accessed December 18, 2020. See In re Jimmy Moore LLC, 119
USPQ2d 1764, 1767-68 (TTAB 2016) (Board may take judicial notice of online dictionary
definitions also available in printed form).
19 TSDR November 20, 2019 Denial of Reconsideration at 41 (advance.lexis.com).
20 At times, the Examining Attorney referred to Applicant’s “goods/services” being
encompassed by the goods in the cited registration. To the extent the Examining Attorney
intended to argue that the equipment identified in the cited goods includes lottery services,
we are not persuaded by the argument.
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device located at a lottery retailer that is used to sell online games and to validate
winning tickets of online and instant games. Terminals are connected to a lottery’s
central computers by phone line.”21 This evidence indicates that the South Carolina
Education Lottery provides both lottery services and lottery (or numbers game)
equipment. Similarly, a Washington Post article about the D.C. Lottery “Lucky
Numbers Game” describes how the D.C. Lottery has placed betting terminals at
various locations for consumers to play the game.22 The Arizona Lottery website
promotes the opportunity for businesses to become lottery retailers, noting that the
Arizona Lottery offers “Equipment provided at no cost,” “Lottery Equipment and
Installation” free to the retailer, and “Point-of-Sale Terminals,” and the website
includes a telephone number to “Reorder Scratchers Tickets,” referred to as Arizona
Lottery Scratchers.23 This evidence shows a provider of lottery services, such as those
identified by Applicant, also providing lottery (numbers game) equipment, such as
that identified by Registrant, under the same mark.
The record demonstrates the relatedness of Applicant’s services to the goods in
the cited registration by showing that consumers are accustomed to encountering
such goods and services offered by a single source, including under the same mark.
See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018)
(crediting relatedness evidence that third parties use the same mark for the goods

21 TSDR November 20, 2019 Denial of Reconsideration at 32, 34 (sceducationlottery.com).
22 Id. at 43 (advance.lexis.com).
23 Id. at 65-67 (arizonalottery.com).
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and services at issue because “[t]his evidence suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”); Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir.
2002) (stating that evidence that “a single company sells the goods and services of
both parties, if presented, is relevant to a relatedness analysis”).
The second DuPont factor weighs in favor of likely confusion.
C. The Trade Channels and Classes of Consumers
Turning to the trade channels and consumers, because the Class 28 goods are
legally identical, at least in part, we may presume that the trade channels and classes
of consumers for those goods are identical. Viterra, 101 USPQ2d at 1908 (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion); see also Inter IKEA Sys. B.V. v. Akea, 110 USPQ2d 1734, 1743 (TTAB
2014); L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1971 (TTAB 2007)
(“Because the goods of both parties are at least overlapping, we must presume that
the purchasers and channels of trade would at least overlap.”).
As to the services, the record clearly shows that lottery service consumers often
purchase lottery equipment such as lottery tickets and cards in connection with the
lottery service, or consumers may use lottery equipment such as betting terminals,
in connection with the lottery service. While some lottery equipment may be sold or
provided directly to retailers rather than to end-user customers of the lottery services,
other lottery equipment is provided directly to such end-user customers of the lottery
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services, as part of the services. We therefore find that the consumers and channels
of trade for the goods and services overlap, at least in part.
Applicant argues that the trade channels differ based on alleged actual
marketplace realities, again pointing to Registrant ’s website (which is not in the
record) as an indication that the goods in the cited registration supposedly are
marketed to children while Applicant’s goods and services relate to lotteries for
adults. However, “[t]he authority is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the identification of goods [and
services] set forth in the application regardless of what the record may reveal as to
the particular nature of an applicant’s goods [and services], the particular channels
of trade or the class of purchasers to which sales of the goods [and services] are
directed.” Octocom Sys., 16 USPQ2d at 1787. So, even if Applicant had supporting
evidence for its claims, because the marketplace realities are not reflected in the
identifications we cannot consider them. See Cunningham, 55 USPQ2d at 1846
(affirming Board finding that where the identification is unrestricted, “we must deem
the goods to travel in all appropriate trade channels to all potential purchasers of
such goods”).
The third DuPont factor weighs in favor of likely confusion.
III. Conclusion
The identical and legally identical marks, for legally identical Class 28 goods and
related goods and Class 41 services that move in some of the same channels of trade
to some of the same classes of customers, renders confusion likely.
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Decision: The refusal to register in each of Applicant’s applications is affirmed.