Michael Tretyakov

Trademark Trial and Appeal Board

Aug 18, 2008

No. 78961373 (T.T.A.B. Aug. 18, 2008)

Mailed: August 18, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Michael Tretyakov
________

Serial No. 78961373
_______

Dmitri I. Dubograev of International Legal Counsels PC for
Michael Tretyakov.

Steven W. Jackson, Trademark Examining Attorney, Law Office
107 (J. Leslie Bishop, Managing Attorney).
_______

Before Seeherman, Kuhlke and Walsh, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Michael Tretyakov seeks registration on the Principal
Register of the mark SUGAR GAMES (standard character
format, “games” disclaimed) for goods and services
identified as “entertainment multimedia computer games and
computer game software; electronic game programs for
computers and mobile devices; computer game programs;
interactive game programs; downloadable electronic game
programs; electronic game software; downloadable computer
game software; computer game software contained on CDs, CD-
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78961373
2
ROMS, DVDs, and interactive CD ROMs; computer game discs
featuring interactive video, computer games and interactive
game software; user documentation sold as a unit therewith”
in International Class 9, and “providing a website
featuring information in the field of computer games,
science fiction, video games and entertainment; providing
information on-line relating to computer games and computer
enhancements for games; entertainment services, namely,
providing on-line computer games and on-line interactive
games” in International Class 41.1
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 his identified goods and
services, so resembles the registered mark SUGAR (in
standard character form) for “entertainment services,
namely, providing online games, online contests and online
product trivia about games and toys, intended for consumers
of all ages,” in International Class 41, as to be likely to
cause confusion, mistake or deception.2

1 Application Serial No. 78961373, filed August 28, 2006,
alleging first use and use in commerce on January 17, 2004 under
Section 1(a) of the Trademark Act, 15 U.S.C. §1052(a).

2 Registration No. 3140574, issued September 5, 2006.
Serial No. 78961373
3
Applicant has appealed the final refusal and the
appeal is fully briefed. We affirm the refusal to
register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. 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). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to the first du Pont factor, i.e.,
whether applicant’s mark “SUGAR GAMES” and registrant’s
mark “SUGAR” are similar or dissimilar when compared in
their entireties in terms of appearance, sound, connotation
and commercial impression. The analysis is not whether the
marks can be distinguished when compared side-by-side.
Rather, we must determine whether the marks are
sufficiently similar that there is a likelihood of
confusion as to source and, in making this determination,
we must consider the recollection of the average purchaser
Serial No. 78961373
4
who normally retains a general, rather than specific,
impression of trademarks. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975).
The sound, appearance, connotation and commercial
impression of the marks “SUGAR GAMES” and “SUGAR” are very
similar in that applicant’s mark begins with the entirety
of registrant’s mark. The only difference between the
marks is the addition of the word “GAMES” to applicant’s
mark. While we compare the marks in their entireties, it
is well settled that “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 consideration of the marks in
their entireties. Indeed, this type of analysis appears to
be unavoidable.” In re National Data Corp., 753 F.2d 1056,
1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985). “GAMES” has
been disclaimed in the application in view of its
descriptive or generic significance in the context of the
identified goods and services. Therefore, the term “SUGAR”
in applicant’s mark deserves greater weight as it is the
source-indicating portion of the mark.
Thus, analyzing the marks within these legal
parameters, the addition of the term “GAMES” is not
sufficient to distinguish otherwise identical marks. In re
Serial No. 78961373
5
Chatam International Inc., 380 F.3d 1340, 71 USPQ2d 1944,
1946 (Fed. Cir. 2004).
Applicant argues that the term “SUGAR” is weak in the
field of computer and online games and that minor
differences are sufficient to distinguish the marks. In
support of this contention applicant submitted printouts
from the USPTO’s TARR database of two registrations owned
by the same entity for the mark “SUGAR & ROCKETS” for use
in connection with “computer game software recorded on
magnetic or optical discs; recorded video discs featuring
music and games owned by the same entity,” and a printout
of a Google search summary of the phrase “SUGAR & ROCKETS.”3
Third-party registrations are not evidence of use and thus
are not evidence in support of the du Pont factor
pertaining to third-party use and the strength of the mark.
AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403,
177 USPQ 268, 269-70 (CCPA 1973). With regard to the

3 The examining attorney objected to this evidence as untimely,
as it was not submitted into the record during examination.
Applicant responded that it was submitted as an attachment to his
May 30, 2007 response to the Office Action. While the response
references the attachments, no such attachments are visible in
the electronic file. We have considered applicant’s evidence
attached to his brief, on the chance that it was an electronic
error that did not process the incoming attachments. At a
minimum, the examining attorney could have, either by phone or in
the final office action, notified the applicant that the
attachments, clearly referenced in his response, were not
attached.

Serial No. 78961373
6
Google search summary, it has four “hits” displayed for
“sugar and rockets” which may or may not refer to the
computer games referenced in the third-party registrations.
In re Fitch IBCA, Inc., 64 USPQ2d 1058, 1060 (TTAB 2002)
(search result summaries are of limited probative value).
In any event, this evidence does not establish that the
term SUGAR is widely used by others in the same field and
thus should be accorded a narrow scope of protection.
While third-party registrations may be relevant to
show that a mark is descriptive, suggestive, or has a
commonly understood meaning such that the public will look
to other elements to distinguish the source of the goods or
services, Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 675, 223 USPQ 1281, 1285-
86 (Fed. Cir. 1984), this record, consisting of two
registrations owned by the same entity, clearly does not
establish that the word “SUGAR” has some meaning in the
field of computer and online games.
In view of the above, the factor of the similarity of
the marks weighs in favor of finding a likelihood of
confusion.
We turn next to a consideration of the goods and
services identified in the application and the cited
registration. It is well settled that goods and services
Serial No. 78961373
7
need not be similar or competitive in nature to support a
finding of likelihood of confusion. The question is not
whether purchasers can differentiate the goods and services
themselves, but rather whether purchasers are likely to
confuse the source of the goods and services. See Helene
Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). Further, we must consider the cited
registrant’s goods as they are described in the
registration and we cannot read limitations into those
goods. See Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1987). If the cited
registration describes goods broadly, and there is no
limitation as to the nature, type, channels of trade or
class of purchasers, it is presumed that the registration
encompasses all goods of the type described, that they move
in all channels of trade normal for these goods, and that
they are available to all classes of purchasers for the
described goods. See In re Linkvest S.A., 24 USPQ2d 1716
(TTAB 1992).
Applicant’s services in International Class 41,
“providing a website featuring information in the field of
computer games,” “providing information on-line relating to
Serial No. 78961373
8
computer games” and “providing on-line computer games,” are
encompassed by registrant’s services in International Class
41, “providing online games, online contests, and online
product trivia about games and toys.” In addition,
applicant’s goods in International Class 9 which include
“computer game programs” and “downloadable electronic game
programs” are related in that they are the subject matter
of registrant’s services and, as to registrant’s online
games, they are competitive.
With regard to the channels of trade, because there
are no specific limitations in either the registration or
the subject application, we must presume that applicant’s
goods (or at the very least his “downloadable electronic
game programs”) and services and registrant’s services will
be sold in the same channels of trade and will be bought by
the same classes of purchasers. See Canadian Imperial Bank
v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed.
Cir. 1987); and In re Smith and Mehaffey, 31 USPQ2d 1531
(TTAB 1994).
Applicant’s unsupported arguments, limiting
registrant’s identification of services to its actual use
in connection with a specific doll and confining
registrant’s channels of trade and customer base to younger
children, fail inasmuch as applicant may not restrict the
Serial No. 78961373
9
scope of registrant’s identification of services. See In
re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986).
As noted above, it is well-established that the Board must
make its likelihood of confusion determination based on the
services as they are identified in the cited registration
and the application. Hewlett-Packard, supra.
In view of the above, the du Pont factors of the
relatedness of the goods and services, and the channels of
trade favor a finding of likelihood of confusion as to the
cited registration.
Finally, applicant argues that “despite an extensive
period of concurrent use of the Registered Mark and the
Applicant’s mark, there is no evidence as to the existence
of consumer confusion of the source of those marks.” Br.
p. 3. First, there is nothing in the record to show that
there has been a meaningful opportunity for such confusion
to have occurred. In particular, we note that the cited
registration claims a date of first use of only May 18,
2006; we do not regard two years of concurrent use as an
“extensive period.” More importantly, in the context of an
ex parte proceeding, “the lack of evidence of actual
confusion carries little weight.” Majestic Distilling,
supra, 65 USPQ2d at 1205.
Serial No. 78961373
10
In conclusion, we find that because the marks are
similar, the goods and services are related, and the
channels of trade and purchasers overlap, confusion is
likely between applicant’s mark and the mark in the cited
registration.
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.