PGH Partnership

Trademark Trial and Appeal Board

Aug 30, 2000

No. 75457661 (T.T.A.B. Aug. 30, 2000)

Paper No. 9
DEB
8/30/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re PGH Partnership
________
Serial No. 75/457,661
_______
Thomas M. Galgano and Daniel P. Burke of Galgano & Burke
for PGH Partnership.
D. Beryl Gardner, Trademark Examining Attorney, Law Office
107 (Thomas Lamone, Managing Attorney).
_______
Before Hanak, Bucher and Holtzman, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant, a general partnership of Nevada, seeks
registration of the mark “PLAYERS CHOICE BLACKJACK” (with
the word “Blackjack” disclaimed) for goods identified in
the application as “casino game tables for card games of
chance used exclusively in commercial gaming
establishments,” in International Class 28.1
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15

1 Serial No. 75/457,661, filed March 26, 1998 based upon
applicant's allegation of a bona fide intention to use the mark
on or in connection with the goods in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/457,661
2
U.S.C. §1052(d). The basis for the refusal is that the
mark “PLAYERS CHOICE POKER” has already been registered for
“poker-style card games,” in International Class 282, so
that when applicant’s mark is used on or in connection with
the identified goods, it would be likely to cause confusion
or mistake by consumers, or to deceive consumers as to the
source of applicant’s and registrant’s respective goods.
Applicant appealed the refusal of registration and
timely filed an appeal brief. The Examining Attorney then
filed a brief within the time set by the Board; an oral
hearing was not requested.
We affirm the refusal to register.
Our determination under Section 2(d) is based upon our
analysis of all of the probative facts in evidence that are
relevant to factors bearing on the issue of likelihood of
confusion. See In re E.I. du Pont de Nemours and Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). In the analysis of
that issue in this case, key considerations are the
similarities of the marks and the relatedness of the goods.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976). We consider, first, the
marks.

2 Registration No. 2,129,556 issued January 13, 1998. The
registration sets forth a date of first use of July 5, 1997.
Serial No. 75/457,661
3
Applicant argues that in spite of the commonality of
the “PLAYERS CHOICE …” prefix, its mark, “PLAYERS CHOICE
BLACKJACK,” is different in sound, appearance and
connotation from registrant’s mark, “PLAYERS CHOICE POKER.”
In contrast, the Trademark Examining Attorney contends
that confusion as to source is likely precisely because the
two marks are similar in sound, appearance and meaning.
The test, when comparing the involved marks, is not
whether applicant's mark can be distinguished from
registrant's mark when subjected to a side-by-side
comparison,3 but, rather, whether the marks are sufficiently
similar in terms of their overall commercial impression
that confusion is likely to result as to the source or
sponsorship of the goods offered under the respective
marks.
Both marks herein begin with the same words “Players
Choice.” As the Trademark Examining Attorney points out,
the term “Poker” is descriptive of registrant’s poker cards

3 Such a comparison is not the proper test to be used in
determining the issue of likelihood of confusion inasmuch as it
is not the ordinary way that customers will be exposed to the
marks. Instead, it is the similarity of the general overall
commercial impression engendered by the marks that must
determine, due to fallibility of memory, whether confusion as to
source or sponsorship is likely. The proper emphasis is on the
average purchaser who normally retains a general rather than a
specific impression of marks. See Envirotech Corp. v. Solaron
Corp., 211 USPQ 724, 733 (TTAB 1981) and Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Serial No. 75/457,661
4
and has been disclaimed in the cited registration.
Similarly, the word “Blackjack” is descriptive of
applicant’s casino game tables, and has been disclaimed
apart from the mark as shown.
With respect to the marks, it is well settled that
marks must be compared in their entireties. Nevertheless,
in articulating reasons for reaching a conclusion on the
issue of likelihood of confusion, “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.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). For instance, “that a particular feature is
descriptive or generic with respect to the involved goods
or services is one commonly accepted rationale for giving
less weight to a portion of a mark …” 224 USPQ at 751.
Here, the dominant element of both marks is “Players
Choice.” The other wording in the two marks, i.e., “POKER”
and “BLACKJACK,” is descriptive or generic matter which has
been disclaimed by registrant and applicant, respectively,
and which contributes very little to the commercial
impressions created by the two marks. Any dissimilarity in
the marks that might result from their use of different
Serial No. 75/457,661
5
descriptive or generic wording is greatly outweighed by the
marks’ basic similarity, i.e., their shared use of the
suggestive term PLAYERS CHOICE. In view thereof, while
differences admittedly exist between the marks when viewed
on the basis of a side-by-side comparison, when considered
in their entireties, applicant’s “PLAYERS CHOICE BLACKJACK”
mark is substantially similar to registrant’s “PLAYERS
CHOICE POKER” mark.
Moreover, even if consumers were to notice the
differences in the respective marks, they may well believe
that due to the shared term PLAYERS CHOICE, the gaming
tables offered by applicant under its “PLAYERS CHOICE
BLACKJACK” mark represents a new product from the same
source as the company which offers poker cards under the
“PLAYERS CHOICE POKER” mark.
Hence, when compared in their entireties, we find the
marks are similar in sound and appearance and are likely to
create substantially similar impressions upon the minds of
prospective purchasers.
We turn next to the goods. In its brief, applicant
spends no time even discussing the relationship between
poker-style card games and casino game tables for card
games of chance. However, the Trademark Examining Attorney
has made of record several third-party registrations
Serial No. 75/457,661
6
demonstrating that the types of goods sold by both
applicant (gaming tables for card games) and registrant
(card games) can come from the same source. Third-party
registrations which individually list two different items
and which are based on use in commerce are evidence that
the listed goods are of a type which may emanate from a
single source. In re Albert Trostel & Sons Co., 29 USPQ2d
1783 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6
USPQ2d 1467 (TTAB 1988) at note 6.
Moreover, this certainly comports with our assumptions
about channels of trade for these respective goods. In the
absence of a specific limitation in the registration
certificate, we must assume that because these goods travel
in all the usual channels of trade for such goods,
registrant uses the mark on card games marketed, for
example, directly to casinos. In re Elbaum, 211 USPQ 639
(TTAB 1981). Consequently, those who make purchasing
decisions for casinos would be buying as essential
components of such gaming establishments both playing cards
and game tables for card games.
Both the Trademark Examining Attorney and applicant
focus much of their argumentation on the number and nature
of similar marks in use on similar goods. Applicant
contends:
Serial No. 75/457,661
7
The casino and recreational game fields, in general,
are diluted with marks containing “PLAYER’S CHOICE”,
including variations thereof.” [applicant’s appeal
brief, p. 3]
The Trademark Examining Attorney admits that the
“PLAYERS CHOICE …” (or the possessive forms, “PLAYER’S
CHOICE …” or “PLAYERS’ CHOICE …”) formative is indeed used
in third-party registrations. Specifically, this formative
is part of composite trademarks on the federal Register for
used golf balls, dart boards and billiard tables, as well
as being contained within service marks for basketball
training camps and the retailing of video games. While
these uses may well demonstrate that “Players Choice” is
suggestive for a variety of sporting good items, none of
these other uses share the close relationship with playing
cards that applicant’s goods have, and hence, with the
exception of registrant’s playing cards sold to casinos,
all would seem to move in different channels of trade than
do applicant’s goods. Accordingly, permitting the cited
registration to issue to registrant in 1998 in the face of
these prior third-party registrations, while denying
applicant the right of publication on the basis of
registrant’s mark, is neither inconsistent nor unfair.
Serial No. 75/457,661
8
In conclusion, based upon our review of the relevant
du Pont factors, we find that applicant’s application is
barred from registration by the existence of Registration
No. 2,129,556.
Decision: The refusal under Section 2(d) of the Act
is affirmed.
E. W. Hanak
D. E. Bucher
T. E. Holtzman
Administrative Trademark
Judges, Trademark Trial
and Appeal Board