IP Law Daily, TRADEMARK—TTAB: Even House name for golf simulator venue too similar to existing Even marks, (May 28, 2025)

By Steven Melendez

The board found a likelihood of confusion with registered marks for "bar services" and "provision of conference, exhibition and meeting facilities."

The Trademark Trial and Appeal Board (TTAB) affirmed an examining attorney's decision to refuse registration of the EVEN HOUSE mark, finding a likelihood of confusion with an existing EVEN mark (In re Tempo CC, Inc., No. 98264392 (T.T.A.B. May 20, 2025)).

Tempo CC, Inc., had sought to register EVEN HOUSE for “Entertainment services in the nature of organizing social entertainment events; organizing sporting events, namely, golf simulator competitions; providing recreational facilities for use of electronic golf simulator" in International Class 41. Three existing EVEN marks, including a standard character mark and two special form marks, are already registered by another owner for “Bar services; Cafe services; Hotel accommodation services; Restaurant services; Snack-bar services; Provision of conference, exhibition and meeting facilities" in International Class 43.

The TTAB considered the usual DuPont factors in determining whether there is a likelihood of confusion between the marks, focusing primarily on the standard character EVEN mark, which it found most similar to EVEN HOUSE.

Strength of the existing mark. Tempo CC argued that the term "EVEN" is legally weak.

In the prosecution process, the company said the term is "highly diluted," pointing to existing registrations for "EVEN KEEL FISH SHACK" and "EVEN STEVENS," as well as a notice of allowance for "EVEN COAST," each of which covers "restaurant services" or "restaurant and bar services."

But the board found that there is not sufficient evidence to show EVEN is conceptually weak. The EVEN STEVENS mark is cancelled, meaning it "has no probative value except to show that a registration once issued," and the notice of allowance isn't evidence of a mark's registration, according to the ruling.

And EVEN KEEL FISH SHACK "arguably has a distinct commercial impression" since "even keel" is itself a term with a specific meaning, the board found.

Tempo CC also didn't submit evidence of third-party use of EVEN in the marketplace, according to the ruling.

"In short, the evidence of record does not establish that the cited mark is either conceptually or commercially weak," according to the ruling. "Thus, we deem the cited mark to have the normal scope of protection afforded an inherently distinctive mark."

Comparison of the marks. Tempo CC had disclaimed the HOUSE portion of EVEN HOUSE in its application, "conceding that the term is not inherently distinctive," according to the ruling.

The TTAB then found that the marks "look and sound similar," with EVEN contained within EVEN HOUSE. Consumers could reasonably assume that EVEN HOUSE was another line of services from the same source as EVEN, the board found.

And while Tempo CC argued that adding HOUSE creates a distinctive impression because of the connotation of "a dedicated venue," the board found it didn't sufficiently show how the combination of the terms would do so.

The board found the marks to be "highly similar," weighing in favor of a likelihood of confusion.

Relatedness of the services. Tempo CC argued it focuses on "immersive recreational experiences specifically electronically simulated golf competitions" while the existing mark registrant focuses on "on-site consumption of food and beverages, lodging, and hosting of business-related meetings or conferences."

But the examining attorney had found the sets of services to be "unquestionably closely related," providing evidence of at least 10 venues that combine golf simulators with dining. That suggests consumers are used to seeing both types of services from the same source, weighing in favor of a likelihood of confusion.

Trade channels and conditions of purchasing. Tempo CC claimed its services “are promoted through specialized entertainment venues, event planners, and recreational activity networks,” while the existing mark registrant's services go through "traditional hospitality channels, including travel platforms, dining guides, and lodging directories."

But neither mark application was explicitly limited to particular channels or classes of consumers, meaning the TTAB assumed all normal channels would be in use, and the evidence had already shown the sets of services are often marketed through the same channels, weighing in favor of a likelihood confusion.

Similarly, Tempo CC failed to show that consumers would exercise specific care in choosing services in this area.

Overall, the board found confusion to be likely, affirming the decision to deny registration.

The Case is Serial No. 98264392.

Judge: Lavache, R.

Attorneys: Ross Brandborg (FireCastle) for Tempo CC, Inc. Christopher Hoffman for the USPTO.

Companies: Tempo CC, Inc.

Cases: Trademark USPTO