IP Law Daily, TRADEMARK—TTAB: Likelihood of confusion supports refusal to register in dispute over alcohol marks, (Apr 20, 2026)

By Steven D. Cole, J.D.

Applicant’s PLAYER EXCLUSIVE mark for bourbon product likely to be confused with the registered mark PLAYERS VODKA.

The Trademark Trial and Appeal Board (Board) affirmed a Trademark Examining Attorney’s refusal of registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). The applicant, Game Changer Bourbon LLC (Game Changer), sought registration of the mark PLAYER EXCLUSIVE, with “EXCLUSIVE” disclaimed, for “Bourbon; Distilled spirits,” in International Class 33. This mark, however, was likely to be confused with the registered mark PLAYERS VODKA, with “VODKA” disclaimed, for “vodka,” also in International Class 33. Analysis of the marks under the first three DuPont factors played a compelling role in this decision (In re Game Changer Bourbon LLC, Serial No. 97934533 (T.T.A.B. Apr. 15, 2026)).

The first DuPont factor. The first of the 13 DuPont factors, which focuses on the similarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression, supported the refusal. The applied-for and cited marks were found to be similar in appearance, with the first term in each being a version of the word PLAYER. The fact that one was singular and the other plural was a distinction that not many consumers would notice and recall. The marks also sounded similar, and it was likely that many consumers familiar with the cited mark may refer to it as simply PLAYERS when asking for the goods.

The marks were also similar in meaning and commercial impression, according to the Board. Consumers familiar with PLAYERS VODKA would be likely to view the PLAYER EXCLUSIVE label on bourbon and other distilled spirits (including vodka) as a variation or extension of the PLAYERS VODKA mark. Many would mistakenly conclude that the two products were connected, perhaps thinking that the new “exclusive” version was a business extension involving a limited production variety. Game Changer argued that a “player exclusive” is an item designed uniquely for a particular player, such as special basketball shoes made for a particular NBA player. But Game Changer did not submit any evidence that this practice is common for bourbon or distilled spirits.

The other relevant DuPont factors. Analysis under the second DuPont factor, which evaluates the relatedness of the goods, strongly supported the refusal. Both marks implicated International Class 33, and because vodka is a distilled spirit, the goods overlapped and were identical in part. The third DuPont factor considers whether the established, likely-to-continue trade channels overlap or are similar. The Board assumed that the identical-in-part goods at issue here (vodka and other distilled spirits) traveled through the same trade channels, and Game Changer appeared to concede that this factor supported the refusal. Under the fourth DuPont factor, examiners weigh the likely care that would be exercised by relevant consumers. Game Changer argued that because its goods are very expensive—submitting evidence that some of its bourbon sells for $4,500 per bottle—consumers purchase it with care. However, Game Changer’s application contained no restrictions on the goods; thus, it covered bourbon and distilled spirits sold at any price point. The Board, therefore, could not assume that all relevant consumers would exercise a heightened degree of care, rendering this factor neutral in the analysis.

Conclusion. The Board determined that only the first three DuPont factors were probative in this appeal, and all three supported the Section 2(d) refusal. It concluded: “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.”

The case is Serial No. 97934533.

Attorneys: John B. Dawson (Carle Mackie Power & Ross LLP) for Game Changer Bourbon LLC. Kristin Kuraishi for the USPTO.

Companies: Game Changer Bourbon LLC

Cases: Trademark USPTO