Decisions · 86489116
In re USA Warriors Ice Hockey Program, Inc.
Serial No. 86489116 · Decided 2017-05-16 · Section 2(d) Ex Parte Appeal
What happened
Registration refused — the Board found that USA WARRIORS ICE HOCKEY NONE TOUGHER & design, for ice hockey programs for injured and disabled members and veterans, is too similar to the registered USA HOCKEY & design marks for hockey games and amateur-hockey association services, and held that the applicant’s older lookalike registration and the fact that USA Hockey featured the applicant’s mark on its website did not overcome the conflict because there was no written agreement consenting to registration.
The marks
Applicant
USA WARRIORS ICE HOCKEY NONE TOUGHER and design [The mark consists of the wording "USA WARRIORS ICE HOCKEY NONE TOUGHER" and a design. The wording "USA WARRIORS ICE HOCKEY" appears inside the outline of a rectangle. The wording "USA" in a stylized font, with two stripes appearing below the "US", and a five-pointed star appearing inside the "A", creating the impression of a waving flag. Below the rectangle appears the design of a shield with a five-point star inside. Inside the star appears a sled hockey player, lying on a sled and holding a hockey stick in each hand. The hockey player is wearing a jersey with "USA" appearing in the same stylization as above. The wording "NONE TOUGHER" appears in the shield below the star.] ("USA" and "Ice Hockey" disclaimed; color not claimed)
Arranging and conducting ice hockey programs for injured and disabled members and veterans, in Class 41
Cited registration
USA HOCKEY and design (two registrations owned by the same entity; "Hockey" disclaimed; "USA" registered under Section 2(f) in Reg. No. 2739877)
Reg. No. 2739877 (Class 41): Entertainment in the nature of hockey games, exhibitions, competitions, and tournaments; providing on-line sports information in the field of hockey. Reg. No. 2833759 (Class 35): Association services; namely, promoting and encouraging the sport of amateur ice hockey, including promulgating guidelines and rules for ice hockey competitions, sanctioning ice hockey associations, leagues, teams and players, and selecting hockey teams to represent the United States internationally.
How the marks compared
| Dimension | Finding | What the Board said |
|---|---|---|
| sound | Similar | The Board found the marks similar in sound, though its reasoning centered on the shared, identically-stylized “USA” and the common word “Hockey.” |
| appearance | Similar | Both marks turn the letters “USA” into a representation of the U.S. flag with a star inside the “A,” and no other word is as highly stylized, so the added words and graphics in the applicant’s mark did not set it apart. |
| meaning | Similar | Both marks convey a U.S.-hockey identity, leading consumers to think the applicant’s team is connected to or part of USA Hockey. |
| commercial impression | Similar | The dominant USA-flag styling made it likely that participants, fans, and other consumers would believe the applicant is associated with the registrant. |
The Board found the marks similar in appearance, sound, connotation, and commercial impression, driven by the identically-stylized USA flag element and the shared word “Hockey.”
du Pont factors that bore on the outcome
| # | Factor | Weight | What the Board found |
|---|---|---|---|
| 1 | Similarity of the marks | Favored Refusal | The marks were found similar mainly because they share the same stylized USA-flag design and the word Hockey, which the applicant did not dispute. |
| 2 | Relatedness of the goods or services | Favored Refusal | The applicant’s disabled-veteran hockey programs were treated as falling within the registrant’s broader, unrestricted hockey services, which the applicant did not dispute. |
| 10 | Market interface between applicant and owner of a prior mark | Favored Refusal | Because there was no written agreement consenting to registration, the Board refused to treat USA Hockey’s display of the applicant’s mark on its website as consent, holding the registrant’s silence might instead reflect permission it could revoke. |
| 13 | Any other established fact probative of the effect of use | Favored Refusal | The applicant’s older near-identical registration had coexisted with the cited marks for only about 3½ years — less than five years — so, unlike the case it relied on, that registration was still cancellable and the coexistence did not outweigh the other factors. |
Why this decision is significant
Precedential TTAB decision that clarifies two recurring 2(d) issues: it limits In re Strategic Partners to prior registrations that are over five years old (and thus immune from cancellation), and it establishes that a registrant’s knowledge of, and website display of, an applicant’s mark is not a substitute for a written consent to registration.
Research significance is Trademark Valet's editorial rating of how useful a decision is to practitioners. It is not a statement of precedential weight — that is the separate Precedential field, which comes from the Board.
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The original record
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