Game Changer Bourbon LLC

This Opinion Is Not a
Precedent of the TTAB
Mailed: April 15, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Game Changer Bourbon LLC
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Serial No. 97934533
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John B. Dawson, of Carle Mackie Power & Ross LLP, for Game Changer Bourbon
LLC.
Kristin Kuraishi, Trademark Examining Attorney, Law Office 131,
Nicholas A. Coleman, Managing Attorney.
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Before Pologeorgis, Thurmon and Lebow, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Game Changer Bourbon LLC (“Applicant”) seeks registration on the Principal
Register of the mark PLAYER EXCLUSIVE, in standard characters with
“EXCLUSIVE” disclaimed, for “Bourbon; Distilled spirits,” in International Class 33.1
1 Application Serial No. 97934533 was filed on May 12, 2023, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
During prosecution, Applicant amended the Application to allege use under Section 1(a) of
the Act, alleging a first use anywhere and in commerce on or before April 15, 2024. See
Applicant’s August 20, 2024 Amendment to Allege Use.
Citations to the prosecution file are to entries in the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system.

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The Trademark Examining Attorney issued a final refusal of registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), finding a likelihood of
confusion based on a Registration of the mark PLAYERS VODKA, in standard
characters with “VODKA” disclaimed, for “vodka,” in International Class 33.2
The appeal is briefed and ready for final decision. We affirm the refusal to register.
Section 2(d) – Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912
F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between
an applicant’s mark and a previously registered mark is determined on a case-by-case
basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018). When analyzing
these factors, the overriding concerns are not only to prevent buyer confusion as to
the source of the goods or services, but also to protect the registrant from adverse
commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993).
2 Registration No. 6493501, issued September 21, 2021, on the Principal Register.

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“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). Varying
weights may be assigned to each DuPont factor depending on the evidence presented.
See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011);
Shell Oil, 992 F.2d at 1206 (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re i.am.symbolic, LLC, 866 F.3d
1315, 1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 1164-65 (Fed. Cir. 2002)); In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed.
Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”).
Likelihood of Confusion – Analysis
The Applicant and the Trademark Examining Attorney focused on the first two
DuPont factors, with some additional argument submitted under factors three and
four. We will address DuPont factors one through four.
A. Similarity of the Marks
To evaluate the similarity of the marks under the first DuPont factor, we consider
the marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison

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Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (citing DuPont, 476 F.2d at
1361). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s LLC, No. 87075988, 2018 TTAB LEXIS
170, at *13 (quoting In re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *4), aff’d
mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling
Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”) (citation omitted).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
normally “retains a general rather than a specific impression of marks.” In re
i.am.symbolic, llc, No. 85916778, 2018 TTAB LEXIS 281, at *11.
The applied-for mark PLAYER EXCLUSIVE and the cited mark PLAYERS
VODKA are similar in appearance. The first term in both marks is “PLAYER(S).” See
In re Detroit Athletic Co., 903 F.3d 1296, 1303 (Fed. Cir. 2018) (finding “the identity
of the marks’ two initial words is particularly significant because consumers typically
notice those words first”); Palm Bay Imps., 396 F.3d at 1372-73; Presto Prods., Inc. v.
Nice-Pak Prods. Inc., No. 91074797, 1988 TTAB LEXIS 60, at *8 (“it is often the first
part of a mark which is most likely to be impressed upon the mind of a purchaser and
remembered”).

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The applied-for mark uses a singular version of “PLAYER,” while the cited mark
uses a plural “PLAYERS.” This is a distinction, but not one many consumers will
notice and recall. The distinction between a singular and plural version of a word “is
not sufficient to prevent likely confusion.” In re Wenger Corp., 2022 TTAB LEXIS 48,
*4. See also Wilson v. Delaunay, 245 F.2d 877, 878 (CCPA 1957) (“there is no material
difference, in a trademark sense, between the singular and plural forms of the word
‘Zombie’ and they will therefore be regarded here as the same mark”). This is
especially so where PLAYER(S) is the initial and dominant element in both marks,
increasing the likelihood consumers will focus on that shared element.
The second word in each mark is disclaimed and appears descriptive of the goods
of Applicant and Registrant. While we consider marks in their entireties, we also
acknowledge that not all elements of a mark of equally distinctive. Disclaimed or
descriptive matter generally has less source-indicating weight in the analysis.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 947 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on the likelihood of confusion.’“)
(quoting In re Nat’l Data, 753 F.2d 1056, 1060 (1984)).The first word, “PLAYER(S),”
is dominant in both marks and is more likely to be relied upon and remembered by
consumers. The marks, considered in their entireties, look similar.
The marks also sound similar. While the two marks have distinct
pronunciations—that is, “PLAYER EXCLUSIVE” and “PLAYERS VODKA” do not
sound identical—they share the first and dominant element. “[W]e also keep in mind

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the penchant of consumers to shorten marks.” In re Bay State Brewing Co., No.
85826258, 2016 TTAB LEXIS 46, at *9. It is likely that many consumers familiar
with the cited mark may refer to the mark as simply PLAYERS when asking for the
goods. We find the marks are similar in sound.
We also find the marks are similar in meaning and commercial impression. The
shared use of the word “player” in both marks creates a common meaning. Consumers
familiar with PLAYERS VODKA are likely to view PLAYER EXCLUSIVE for
bourbon and other distilled spirits (which includes vodka) as a variation or extension
of the PLAYERS VODKA mark. Many consumers will mistakenly conclude that these
businesses operated under these marks are connected, perhaps thinking the new
“exclusive” version is a business extension involving more exclusive or limited
production goods.
Applicant argues that a “player exclusive” is an item designed uniquely for a
particular player, such a special basketball shoes made for a particular basketball
player. 9 TTABVUE 14. Applicant submitted evidence confirming this practice, but
did not submit any evidence that this practice is common for bourbon or distilled
spirits. Response to Office Action dated August 20, 2024, at 47-53. The fact that some
basketball fans may be aware of player exclusive basketball shoes does not make the
two marks at issue in this appeal any more or less similar. We find that most
consumers of Applicant’s bourbon and other distilled spirits are unlikely to connect
these goods with custom-made basketball shoes.

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Applicant also argues that the word “exclusive” shows that the goods sold under
the mark will be special in some way. 9 TTABVUE 14. Some consumers likely
attribute this type of meaning to Applicant’s mark, but as we explained above,
consumers familiar with the cited PLAYERS VODKA mark may view Applicant’s
mark as a business extension, with Registrant extending its business from vodka to
other exclusive distilled spirits. The exclusivity connoted by the applied-for mark may
not be a meaningful distinction with consumers familiar with Registrant’s vodka.
The marks are similar. The first DuPont factor supports the refusal.
B. Similarity or Relatedness of the Goods
We evaluate the second DuPont factor based on the goods identified in the
Application and the cited Registration. See Stone Lion Cap. Partners, LP v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Hous. Comput. Servs.
Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient for a finding of likelihood of
confusion as to a class of goods in the Application if relatedness is established between
any of the goods identified in that class and those identified in the cited Registration.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981); see
also Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at
*18; In re Aquamar, Inc., No. 85861533, 2015 TTAB LEXIS 178, at *9 n.5. In addition,
the goods need only be sufficiently related that a relevant consumer would be likely
to assume, upon encountering goods marketed under the marks at issue, that the
goods originate from, are sponsored or authorized by, or are otherwise connected to
the same source. See Black & Decker Corp. v. Emerson Elec. Co., Nos. 91158891 and
91158941, 2007 TTAB LEXIS 50, at *25-26.

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The cited Registration identifies “vodka,” in International Class 33. The
Application identifies “Bourbon; Distilled spirits,” also in International Class 33.
Vodka is a distilled spirit, so the goods overlap and are identical in part.3 Applicant
does not dispute this fact and does not address the second DuPont factor in its Appeal
Brief. The goods are identical in part. The second DuPont factor strongly supports the
refusal.
C. Trade Channels and Customer Care – The Third and Fourth
DuPont Factors
The third DuPont factor asks whether the established, likely to continue trade
channels overlap or are similar. This consideration is important because when goods
travel through the same trade channels, consumers will see the goods together in
those channels, thus increasing consumers’ exposure to the marks in proximity to one
another and the chance that they will be confused. Because the goods are identical in
part and neither the Application nor the cited Registration contain any limitations
on the goods, we must presume the identical in part goods travel through the same
trade channels (i.e., the channels traditionally used with distilled spirits like bourbon
and vodka). In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (“it is well
established that, ‘absent restrictions in the application and registration, [identical]
goods and services are presumed to travel in the same channels of trade to the same
3 Vodka is defined as “a colorless liquor of neutral spirits distilled from a mash (as of rye or
wheat).” Merriam-Webster online dictionary. The Board may take judicial notice of published
definitions. Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 996 (Fed.
Cir. 2020) (“The Board relied on dictionary definitions of the terms ‘stratus’ and ‘strata’ to
evaluate similarities in the connotation of each mark.”).

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class of purchasers’”) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d
1261, 1268 (Fed. Cir. 2002)). Applicant appears to concede that the third DuPont
factor supports the refusal. 9 TTABVUE 17. We find the trade channels and classes
of purchasers are presumed the same with respect to the legally identical in part
goods at issue. Thus, the third DuPont factor also heavily favors a finding that
confusion is likely.
The fourth DuPont factor considers the likely care exercised by relevant
consumers. DuPont, 476 F.2d at 1361 (considering “[t]he conditions under which …
sales are made, i.e. “impulse” vs. careful, sophisticated purchasing”). Applicant
argues that its goods are very expensive and thus will be purchased with care.
Applicant submitted evidence confirming high prices for some of its goods (e.g., $4500
for a bottle of bourbon). Response to Office Action dated August 20, 2024, at 18
(showing a small bottle of Steph Curry endorsed bourbon for $4,500). However,
because the Application contains no restrictions on the goods, the Application covers
bourbon and distilled spirits sold at any price point, from the very expensive bourbon
identified in Applicant’s evidence to inexpensive vodka. We evaluate the fourth
DuPont factor based on the goods identified in the Application and the cited
Registration. See, e.g., Sock It To Me, Inc. v. Fan, No. 91230554, 2020 TTAB LEXIS
201, at *24-25 (where there are no limitations in the identification, goods encompass
“all goods of the type identified, without limitation as to their nature or price”)
(citation omitted). Because the goods are not restricted by price, or anything else, we

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cannot assume that all relevant consumers will exercise a heightened degree of care.
Viterra, 671 F.3d at 1362. We find the fourth DuPont factor is neutral.
Conclusion: Weighing the Factors
We have reviewed and evaluated all the evidence of record and all the arguments
presented. Only the first three DuPont factors are probative in this appeal, and all
three support the Section 2(d) refusal. The marks are similar and the goods are
identical in part. The identical in part goods are presumed to travel through the same
trade channels and offered to the same classes of purchasers. The record supports the
refusal. Confusion is likely.
Decision: The Section 2(d) refusal is affirmed.