Kopla Games Ltd.

Trademark Trial and Appeal Board

Mar 14, 2018

No. 87004917 (T.T.A.B. Mar. 14, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: March 14, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Kopla Games Ltd.
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Serial No. 87004917

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Aric S. Jacover of Jacover Law LLC,
for Kopla Games Ltd.

Howard B. Levine, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
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Before Zervas, Wolfson and Greenbaum,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Kopla Games Ltd. (“Applicant”) seeks registration on the Principal Register of the
standard character mark NONSTOP KNIGHT for
“Computer game software; Downloadable computer game
software via a global computer network and wireless
devices; Downloadable electronic game software for use on
mobile phones, tablets, wireless devices, and mobile
devices; Interactive multimedia computer game programs;
Video game software” in International Class 9; and
Serial No. 87004917
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“Entertainment services, namely, providing online video
games; Providing online non-downloadable game software;
Providing a website featuring non-downloadable game
software; Provision of information relating to electronic
computer games provided via the Internet” in
International Class 41.1
The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 4422755
for the standard character mark NONSTOP GAMES on the Principal Register for
“Computer game software; video game programs; computer
software platforms for online gaming and social
networking; interactive video game programs; electronic
game programs and computer software platforms for online
gaming and social networking which may be accessed via
the Internet, computers and wireless devices; computer
software for providing electronic media or information in
the fields of virtual communities and electronic online
gaming” in International Class 9; and
“Online computer and electronic games, enhancements
within online computer and electronic games, and game
applications within online computer and electronic games;
information relating to computer games provided online;
virtual environments in which users can interact through
social games for recreational, leisure or entertainment
purposes” in International Class 41.2
Registrant disclaimed the word GAMES.
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. Both Applicant and the Examining Attorney filed briefs. We affirm the refusal
to register.

1 Application Serial No. 87004917, filed on April 18, 2016, pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
2 Registration No. 4422755, registered October 22, 2013.
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I. Evidentiary Issue
Applicant submitted new evidence with its appeal brief (located at Exh. C to
Applicant’s brief), to which the Examining Attorney has objected. Because the record
in an application should be complete prior to the filing of an appeal, Trademark Rule
2.142(d), 37 C.F.R. §2.142(d), the Examining Attorney’s objection is sustained and we
give no further consideration to this new evidence.
II. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). 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 and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “Not all of
the [du Pont] factors are relevant to every case, and only factors of significance to the
particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf
Tea, 601. F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)).
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A. The Goods and Services, Trade Channels and Purchasers
We turn first to the similarity between the respective goods and services, trade
channels and purchasers, and consider the goods and services as they are identified
in the application and the cited registration. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as
identified in involved application and cited registration compared); Octocom Sys., Inc.
v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990). The goods and services, although worded slightly differently, are essentially
identical. For example, Applicant’s identification of goods includes “video game
software” and registrant’s identification of goods includes “computer game software”
and “video game programs,” which are essentially the same goods. There is little
difference, too, between Applicant’s “Entertainment services, namely, providing
online video games; Providing online non-downloadable game software; Providing a
website featuring non-downloadable game software; Provision of information relating
to electronic computer games provided via the Internet” and registrant’s online
computer and electronic games, and information relating to computer games provided
online. Applicant has not disputed the Examining Attorney’s contention that the
respective goods and services are essentially identical.
When the respective identifications of goods and services are essentially identical
and without restrictions as to nature, type, channels of trade, or classes of purchasers
- as is the case here - the identified goods and services are presumed to travel in the
same channels of trade to the same class of purchasers. In re Viterra, Inc., 671 F.3d
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1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002) (citing CBS Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983) (“absent restrictions in the
application and registration, goods and services are presumed to travel in the same
channels of trade to the same class of purchasers.”). Thus, we presume the trade
channels and classes of purchasers are the same for both Applicant’s and registrant’s
goods and services.
B. The Marks
We now compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. The test 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 offered under the
respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101
USPQ2d at 1721. Under actual marketing conditions, consumers do not necessarily
have the luxury of making side-by-side comparisons between marks, and must rely
upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ
255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of trademarks. In re
Assoc. of the United States Army, 85 USPQ2d 1264 (TTAB 2007); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
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Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. Vv. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
there is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, provided the ultimate conclusion
rests on a consideration of the marks in their entireties. In re Nat’l Data Corp., 224
USPQ at 751.
Finally, where, as in the present case, the marks would appear on virtually
identical goods and services, the degree of similarity between the marks that is
necessary to support a finding of likely confusion declines. Bridgestone Ams. Tire
Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir.
2012); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698 (Fed. Cir. 1992).
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In this case, both two-word marks begin with the term NONSTOP and hence have
similarities in appearance and sound. Consumers are generally more inclined to focus
on the first word, prefix, or syllable in any trademark or service mark, which in this
case, are identical. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d
1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and remembered”); Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692 (“VEUVE
… remains a ‘prominent feature’ as the first word in the mark and the first word to
appear on the label”). Also, in the case of registrant’s mark, the term NONSTOP is
followed by the generic term GAMES; consumers are unlikely to accord source-
identifying significance to a generic term (which registrant has disclaimed). See In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (affirming
Board’s finding that “DELTA,” not the disclaimed generic term “CAFE,” is the
dominant portion of the mark THE DELTA CAFE).
Applicant points out that its mark is “alliterative”; and “[t]his creates a memorable
impression and encourages consumers to perceive Applicant’s mark as a whole rather
than focus just on the shared word NONSTOP.”3 While the initial consonant sounds
of the two terms are the same, the initial letters of the two words are not the same.
The mere fact that Applicant’s mark is alliterative in sound does not suffice to
distinguish the marks.

3 Applicant’s brief at 7, 4 TTABVUE 8.
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With regard to meaning, “nonstop” is defined as “happening, done, or held without
a stop or pause or without offering relief or respite” in the Random House Dictionary
(Random House, Inc. 2018).4 Applicant argues that “NONSTOP in the cited mark
would be perceived as a modifier of the plural word GAMES”; and the “combination
of these words strongly suggests that the mark is being used as a company name that
perhaps is working ‘nonstop’ to create and develop new games, as opposed to the name
of a specific game featuring a ‘nonstop’ moving knight character.”5 As for its mark,
Applicant argues “the word NONSTOP modifies the word KNIGHT such that in the
context of Applicant’s goods and services it would be understood as the title of a
computer game featuring a knight as the main player-controlled character. Thus, the
meaning of the word NONSTOP in Applicant’s mark is suggestive of the continuous
movement of the player’s knight character throughout the game.”6 NONSTOP in both
marks connotes continuousness. The second terms in each mark do not alter the
meaning of the identical first term. Due to the shared suggestion of continuousness
in both marks when they are considered as a whole, they are similar in connotation.
In addition, consumers familiar with registrant’s NONSTOP GAMES games, upon
encountering Applicant’s games, will mistakenly believe that Applicant’s games are
another of registrant’s games, featuring a KNIGHT character.

4 http://www.dictionary.com/browse/nonstop?s=t. 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, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online
dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
5 Applicant’s brief at 9, 4 TTABVUE 10.
6 Applicant’s brief at 8, 4 TTABVUE 9.
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Next, we find the commercial impressions of the marks considered as a whole to
be similar in view of the similarity in connotation, and because the two-word marks
begin with the same term.
In view of the foregoing, we find that the du Pont factor regarding the similarity
of the marks favors a finding of likelihood of confusion.7
C. Third Party Uses and Registrations
Applicant argues that “NONSTOP is widely used as a suggestive term in
connection with numerous other mobile computer games”; that the “third-party uses
demonstrate that the term NONSTOP is not particularly distinctive and therefore
should not be afforded much weight when comparing the marks at issue”; and that
the common elements are weak.8 This argument pertains to the sixth du Pont factor,
the number and nature of similar marks in use on similar goods.
Evidence of third-party use is relevant to show that a term “may have a normally
understood and well-recognized descriptive or suggestive meaning, leading to the
conclusion that that [term] is relatively weak, and can show that customers have been
educated to distinguish between different marks on the basis of minute distinctions.”
Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030,
1036 (TTAB 2016) (quotations omitted). The Court of Appeals for the Federal Circuit,

7 Applicant has noted “[n]umerous cases comparing two-word marks in the context of Section
2(d) have found that marks with different second words are sufficient to avoid a likelihood of
confusion.” Applicant’s brief at 10-12, 4 TTABVUE 11-13. Such cases were decided under
facts dissimilar to those facts before us in this appeal.
8 Applicant’s brief at 10, 4 TTABVUE 11.
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has instructed that evidence of extensive use and registration of a term by others as
a mark can be “‘powerful on its face,’ even where the specific extent and impact of the
usage has not been established.” Jack Wolfskin Ausrustung Fur Draussen GmbH v.
New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 982 (Jan. 25, 2016) (quoting Juice Generation, Inc. v.
GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)).
Applicant’s evidence demonstrates over twenty titles for “iPhone Apps” located on
a screenshot from the App Store, including the following:9
IDLE MONSTER; NON-STOP NON-STOP HERO
SUPER CAR NON-STOP RACING NON STOP EXTREME RACING
MOJJE NON STOP NON STOP!
NONSTOP FISH NONSTOP RUNNER 3D
NONSTOP NINJA KNIGHT INVADERS – NON STOP
NON STOP CAR RACING NONSTOP BATTLE
NONSTOP SQUARE NONSTOP MILLIONAIRE

The owners of the different games are not identified, and we cannot discount the
possibility that one or a handful of entities are the source of such games. Applicant
did submit description and information pages for six of such games which identity
different “Seller[s].” There is no information on these pages, or in the record, about
the significance of the “Seller” designation and particularly whether the “Seller” is
more than a retailer and actually the source of the games. For five of the six games
featured, the “Seller” and the identified copyright owner have different names.
Because the pages from the App Store do not indicate the source(s) of the games,
and in particular whether the source(s) of the games is/are the same entity as the

9 Feb. 2, 2017 Resp. TSDR 14.
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“Seller,” Applicant’s evidence has limited probative value and does not support
Applicant’s contention that NONSTOP is a weak source indicator for the goods and
services identified in the registration. While we find NONSTOP in registrant’s mark
to be suggestive of a feature of registrant’s goods and services, on this record, it is not
so weak as to permit the registration of a similar mark for essentially the same goods
and services.
D. Conclusion
Applicant’s and registrant’s goods and services are essentially identical and the
trade channels and classes of purchasers for such goods and services are the same.
The marks are similar in sound, meaning, appearance and commercial impression
and Applicant has not established any significant weakness in the cited mark. Under
these circumstances, we find Applicant’s mark for its goods and services is likely to
be confused with registrant’s mark for its goods and services.
Decision: The refusal to register under Section 2(d) is affirmed for both the goods
in International Class 9 and the services in International Class 41.