In a bit of a snoozer, the Board affirmed Section 2(d) refusals of the mark THE TROPICS for “providing foods and drinks; providing of food and drink via a mobile truck; restaurant; catering services” (class 43) and the words + design mark shown below for “entertainment services in the nature of organizing social entertainment events; entertainment services, namely, live musical and dance performances; night club services, namely, conducting parties” (class 41). The Board found the marks likely to cause confusion with the registered mark TROPIXX for various entertainment services, including nightclub services and live performances by musical bands. In re Thomas William Brewer and Mary M. Brewer, Serial Nos. 87503471 and 87504846 (June 4, 2018) [not precedential] (Opinion by Judge George C. Pologeorgis).
The Marks: The Board observed that the word TROPICS is the phonetic equivalent of TROPIXX, and it concluded that the marks have the same connotation and commercial impression. Of course, the verbal portion of the words + design mark is given greater weight, since it is the portion that purchasers would use to call for the services. The word “The” in applicants’ marks has no trademark significance.
Applicants feebly argued that the “XX” in the cited mark could mean kisses, or the number 20, or an extra-large size. Alternatively, the letters PIXX, according to Applicants, convey the meaning of “picture” or “pictures.” The Board was unmoved, since applicant failed to provide any evidence that consumers would so interpret the cited mark.
The Board concluded that the first du Pont factor supported the refusals.
The Services: Applicant’s class 41 services include “night club services,” as does the cited registration. “Registration must be refused if confusion would be likely as to any services recited in an application.” Examining Attorney Anna H. Rosenblatt submitted third-party registration and use evidence showing that the remainder of the class 41 services are closely related to registrant’s services.
As to applicants’ class 43 services, again third-party registrations and usage evidence demonstrated that these third parties offer services relating to the provision of food and beverages, and entertainment services in the nature of live entertainment, catering services and night club services, under the same mark.
Channels of Trade: Because some of the involved services overlap, the Board must presume that they travel in the same, normal channels of trade to the usual classes of consumers. As to the non-identical services, the third-party website evidence showed that these services may be provided in the same market to overlapping customers.
Conclusion: The Board therefore affirmed the Section 2(d) refusal to register.