Paul D. Miller

Trademark Trial and Appeal Board

Feb 12, 2010

No. 77332676re (T.T.A.B. Feb. 12, 2010)

Hearing: Mailed:
November 12, 2009 February 12, 2010
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Paul D. Miller
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Serial No. 77332676
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REQUEST FOR RECONSIDERATION
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Matthew G. McKinney of McKinney Law, LLC for Paul D. Miller.

Jennifer Vasquez, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
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Before Walters, Bucher and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Paul D. Miller filed an intent-to-use application for
the mark COMMANDER-IN-CHIEF (in standard character format)
for “equipment sold as a unit for playing board games” in
International Class 28.1
In a decision mailed January 27, 2010, this panel of
the Board affirmed the refusal to register the application
on the ground that applicant’s mark is likely to cause
confusion with the mark COMMANDER IN CHIEF (also in standard

1 Application Serial No. 77332676 was filed on November 19,
2007.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77332676
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character format) registered for, inter alia, “playing cards”2
also in International Class 28.
On February 3, 2010, applicant filed a request for
reconsideration of the January 27, 2010 decision. As
grounds for reconsideration, applicant requested
clarification on the Board’s failure to consider evidence
attached to its supplemental brief, including third-party
registrations3 and a Wikipedia entry on “Playing Cards.”4
Based upon further review of specific language contained in
the Board’s order of March 6, 2009, we grant applicant’s
request for reconsideration.
In light of applicant’s earlier interest in expediting
this appeal, the Board had approved in advance the
submission of evidence with the respective briefs. Hence,
we now consider, in particular, the contents of the
Wikipedia entry in spite of its limited probative value.
This multiple-screen entry contains an extensive
history of “playing cards,” dating back to the Ninth Century

2 Registration No. 2924653 issued to Olde Mill Company, Inc.
on February 8, 2005.

3 The Third-party registrations had been submitted earlier,
and as reflected in the opinion of January 27, 2010, the Board
had earlier considered this other evidence (e.g., Exhibits A and
B).

4 http://en.wikipedia.org/wiki/Playing_cards, (Exhibit C).

Serial No. 77332676
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in China. One can correctly conclude from this article that
there are extant variations on the standard fifty-two card
deck (the French Deck or Anglo-American playing cards), much
as was shown from the Trademark Examining Attorney’s
extensive Internet evidence. The term “playing cards” – as
that term is used in the popular vernacular and in
identifications of goods in the United States Patent and
Trademark Office – includes the standard fifty-two card
deck, as well as many other variations of game cards. This
additional evidence does not rebut the Trademark Examining
Attorney’s prima facie showing that goods identified by the
broad term “playing cards” and “board games” are closely-
related goods.
Accordingly, the final decision dated January 27, 2010
is amended to clarify that we should have considered this
Wikipedia evidence. However, because this evidence does not
change the outcome of the appeal, the Trademark Examining
Attorney’s refusal to register under Section 2(d) of the
Lanham Act remains affirmed.
Decision: Applicant’s request for reconsideration is
granted, although the refusal to register is still affirmed.