The recitation of services in the opposed application is sufficiently self-explanatory that extrinsic evidence was not need for a full understanding thereof. Nevertheless, the evidence submitted by Applicant and the Examining Attorney confirmed that "applicant provides a sex club in which couples and individuals may engage in sexual activity or observe others so engaged." Thus Applicant's services are clearly different from those of the cited registration.
The Examining Attorney submitted about 20 third-party registrations for marks covering restaurant and bar services along with other goods or services. However, only one also recited adult-oriented services that might be considered related to those of the opposed application. The other registrations recited nightclub services in addition to restaurant and bar services, but the Board took judicial notice of a definition for "night club" as "an establishment for evening entertainment, generally open until the early morning, that serves liquor and usually food and offers patrons music, comedy acts, a floor show, or dancing; nightspot." The definition did not mention adult-oriented erotic entertainment.
The Examining Attorney offered one Internet website pertained to a night club that provides private rooms for "swingers." [Maybe they were a batting cages for baseball practice? - ed.]. The Board, however, found this single website insufficient to establish that night clubs typically offer such swinging facilities.
Moreover, the fact that Applicant's adult social club includes a bar does not require the conclusion that Applicant's services are related to restaurant services. Although the exclusion of "restaurant and bar services" from Applicant's recitation does not render the involved services unrelated, the PTO must provide evidence of relatedness. One third-party registration and one website are simply not enough to show that consumers would expect the involved services to emanate from the same source, even if offered under the same mark.
We recognize the multifarious connection that exists between alcohol and sexual activity. We further are mindful that habitués of bars may utilize such venues as a prelude to adult-themed erotic activities. However, this tangential connection between bar services and erotic activities is not a basis for finding the offering of bar services and an adult-themed social club to be related.
And so the Board reversed the refusal to register.
TTABlog comment: I wonder what's behind Applicant's choice of the mark GREEN DOOR?
Text Copyright John L. Welch 2012.
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