The Trademark Trial and Appeal Board (“Board”) recently considered an application by Ali Ansari, who sought to register the mark TEXAS TWO STEP for distilled spirits. The application was opposed by the Texas State Lottery Commission, which asserted a likelihood of confusion and likelihood of dilution by tarnishment with its registered marks TEXAS TWO STEP and TEXAS TWO STEP TEXAS LOTTERY and design for lottery services.
The evidence in the record was very limited. Applicant submitted no evidence to support its positions. The Board first considered the similarity of the marks and noted that as to the TEXAS TWO STEP word mark, they are identical in appearance, sound, connotation, and commercial impression. For the design mark, the Board noted the “TEXAS LOTTERY” portion was in smaller font and, at best, is descriptive of the lottery services.
In evaluating the relatedness of goods and channels of trade, the Board pointed out that for a finding of confusion, where the marks are identical, the relationship between the goods and/or services need not be as close as if there were differences in the marks. Opposer argued that lottery tickets are sold in multiple locations, including grocery stores and convenience stores where Applicant intends to sell distilled spirits. However, Opposer did not proffer any evidence that distilled spirits are sold in locations where its lottery services are offered, or any third-party evidence that lottery tickets and spirits are sold together.
Ultimately the Board found that the record contained insufficient evidence to find a likelihood of confusion. The Board acknowledged that had the record been developed more fully, the result might have been different.
Although the Board did not find a likelihood of confusion in this case, if I were a betting gal, I’d say that brands should pay attention to identical or highly similar marks for lottery and related services, particularly given the common association between gambling and imbibing alcohol in commerce and popular culture. Don’t take any chances when it comes to clearance, and be sure to consider related categories of goods and services when clearing a mark.