David Lilenfeld Blog The intellectual property blog of David Lilenfeld

3Feb/160

GAME FACE For Masks Confusingly Similar With GAME FACE For Goggles

By David Lilenfeld on February 3, 2016

GAME FACE by Markwort

Markwort Sporting Goods Company filed an application to register the trademark GAME FACE. The TTAB affirmed the refusal to register the trademark GAME FACE for protective sports masks because the trademark is likely to cause confusion with the same already registered trademark for paint ball goggles. Markwort argued the sports masks would be sold in different markets from paint ball goggles; however, the TTAB still found the products to be confusingly similar.

Regarding a likelihood of confusion issue, a more lenient level of relatedness between the sports masks and the paint ball goggles is allowed because the trademarks are identical. Katherine S. Chang, the Examining Attorney, found three different stores that sell lacrosse, field hockey and catcher’s masks as well as paint ball goggles. This discovery supports her theory that the products are being used in the same manner and have the same purpose.

Markwort Sporting Goods, on the contrary, claimed the stores were of little probative value because a finding that the products are being sold in the same stores of a large store does not mean the goods are related. Furthermore, the masks Markwort sells perform an entirely different function than paint ball goggles, as they would not protect a person’s eyes from harmful liquid such as that which is used in paint ball activities. The TTAB agreed, for the above reasons, that the PTO failed to establish that the channels of trade are related. Thus, it considered this du Pont factor to be neutral.

Next, the relatedness of the goods and the trade channels are taken into consideration. In deciding the relatedness of the products, there only needs to be a viable relationship between the goods. In this case, there is such a relationship because the products are identical. Both products protect the consumer’s face and eyes.

Markwort asserted that the products could be expensive thereby requiring more care in the purchasing process. The TTAB, however, was not convinced because the items are not considered expensive enough to fall into this category.

Therefore, the TTAB affirmed the refusal to register the trademark GAME FACE because the goods are likely to be confused as Markwort’s trademark is identical to the registered trademark and the goods are related.

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