The USPTO refused registration of the mark NONSTOP KNIGHT for computer game software, finding it likely to cause confusion with the registered mark NONSTOP GAMES for the same goods. On appeal, applicant pointed to more than 20 iPhone apps having the word NONSTOP, in various spellings, in their names - including NONSTOP NINJA, NONSTOP HERO, and NONSTOP MILLIONAIRE - and it argued that NONSTOP is a weak formative in this field. How do you think this came out? In re Kopla Games Ltd., Serial No. 87004917 (March 14, 2018) [not precedential] (Opinion by Judge Albert Zervas).
As we know, when the marks at issue appear on identical goods or services, a lesser degree of similarity is necessary between the marks to support a finding of likely confusion.
Generally the first part of a mark is the part most likely to be impressed upon the consumers mind and be remembered. Moreover, here the word GAMES in the cited mark is generic and therefore less likely to be accorded source-identifying significance than the word NONSTOP. Applicant noted the alliteration in its mark, asserting that the mark would be considered as a whole rather that with an emphasis on NONSTOP, but the Board was not impressed.
Applicant contended that NONSTOP has a different connotation in each mark in that the "combination of these words strongly suggests that the [cited] mark is being used as a company name that perhaps is working 'nonstop' to create and develop new games, as opposed to the name of a specific game featuring a 'nonstop' moving knight character." The Board, however, found the marks similar in connotation: "NONSTOP in both marks connotes continuousness."
Moreover, the Board observed, "consumers familiar with registrant's NONSTOP GAMES games, upon encountering Applicant's games, will mistakenly believe that Applicant's games are another of registrant's games."
Finally, applicant maintained that NONSTOP is a weak formative for video games in light of more than 20 iPhone apps the include the word NONSTOP, in various forms, in their titles. The Board observed, however, that "[b]ecause the pages from the App Store do not indicate the source(s) of the games, and in particular whether the source(s) of the games is/are the same entity as the 'Seller,' Applicant's evidence has limited probative value." [What difference does it make whether the apps all came from the same source? - ed].
While we find NONSTOP in registrant's mark to be suggestive of a feature of registrant's goods and services, on this record, it is not so weak as to permit the registration of a similar mark for essentially the same goods and services.
The Board therefore affirmed the refusal.
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