The Trademark Trial and Appeal Board had to decide whether Restaurant Services and Nightclub Services are related services. In In re Thomas William Brewer and Mary M. Brewer, Mr. and Mrs. Brewer sought to register the mark THE TROPICS for “providing foods and drinks; providing of food and drink via a mobile truck; restaurant; catering services.” The Trademark Office refused registration of THE TROPICS mark on the ground that it was likely to cause confusion with the registered mark TROPIXX for “nightclub services.”
The likelihood of confusion determination is based on an analysis of all probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services.
With respect to the related services inquiry, it is settled that it is not necessary that the respective services be identical or even competitive in order to find that they are related. It is sufficient if the respective services are related in some manner and/or if the circumstances surrounding their marketing be such that they could give rise to the mistaken belief that services emanate from the same source. The issue is not whether purchasers would confuse the services, but rather whether there is a likelihood of confusion as to the source of these services.
The Trademark Office offered evidence showing that there are nightclubs that offer food and restaurants that offer music and dancing. Mr. and Mrs. Brewer did not put forward a persuasive argument regarding why the restaurant services and nightclub services are not related services. Unfortunately, the Trademark Trial and Appeal Board is limited by the evidence and arguments submitted, but that does not mean that judges’ independent observations do not influence a decision. Apparently those observations did not have an impact on this case.