Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA923976
`09/24/2018
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`Name
`
`Home Box Office, Inc.
`
`Granted to Date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`09/23/2018
`
`1100 Avenue Of The Americas
`New York, NY 10036
`UNITED STATES
`
`TAMARA CARMICHAEL
`OLSHAN FROME WOLOSKY LLP
`1325 AVENUE OF THE AMERICAS
`NEW YORK, NY 10019
`UNITED STATES
`tcarmichael@olshanlaw.com, aprovencio@olshanlaw.com
`212-451-2300
`
`Applicant Information
`
`Application No
`
`87657607
`
`Publication date
`
`03/27/2018
`
`Opposition Filing
`Date
`
`Applicant
`
`09/24/2018
`
`Opposition Peri-
`od Ends
`
`09/23/2018
`
`Baller, Inc.
`925 E Colorado Blvd, Unit 201
`Pasadena, CA 91106
`UNITED STATES
`
`Goods/Services Affected by Opposition
`
`Class 009. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: computer hardware and computer software-
`programs for communication and video recording, transmission of video, playbackof video; software
`for streaming audiovisual and multimedia content via the internet and global communications net-
`works; software for streaming audiovisual andmultimedia content to mobile digital electronic devices;
`software for searching, organizing, and recommending multimedia content; software development
`tools for creating software and mobile applications; computer software for creating and providing user
`access to searchable databases of information and data; computer software for wireless content de-
`livery; computer software for purchasing, accessing, and viewing content related to sports; computer
`software featuring sports activities; mobile applications for accessing and streaming audiovisual and
`multimedia content via the internet and global communications networks; downloadable software for
`viewing live sporting events on mobile telephones, tablets and personal computers; software allowing
`users to upload, post, broadcast, show and display video and audio programming; software for con-
`tent management, namely, management of video, audio, text and graphic files; software for data ana-
`lysis, namely, analysis of the frequency and duration of views of online video broadcasts, and the loc-
`
`

`

`ation and viewing characteristics of viewers
`
`Class 038. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: streaming of audiovisual and multimediac-
`ontent via the Internet; transmission and delivery of audiovisual and multimedia content via the Inter-
`net; video-on-demand transmission services; Live broadcasting services; broadcasting services,
`namely, transmission of voice, audio, visual images and data via digital communications networks;
`electronic transmissionand streaming of digital media content for others via global and local com-
`puternetworks; electronic and digital transmission of audio, video, data, images, signals, and mes-
`sages via the Internet, electronic communications networks, computer networks and wireless commu-
`nications networks
`
`Class 041. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: entertainment services in the nature ofon-
`going television programs and interactive television programs in the field ofsports; entertainment ser-
`vices, namely,providing a website featuring non-downloadable video clips, film clips and other multi-
`media materials all featuring games or sports; providing information in the field of entertainment in the
`nature of pre-game and post-game recaps and analysis, line-up introductions, press conferences,
`venue announcements, interviewsand discussions regarding a particular athlete, sports or historical
`documentaries; entertainment information regardingathlete drafts and draft picks, and video high-
`lights, previews and analysis, all of the above in the field of sports, news, film and theater via televi-
`sion, the Internet, electronic communications networks, computer networks and wireless communica-
`tions network; providing automated filming of sports games
`
`Class 042. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: providing temporary use of non-
`downloadable software for streaming audiovisual and multimedia content via the internet and global
`communications networks; providing temporary use of non-downloadable software for streaming au-
`diovisual and multimedia content to mobile digital electronic devices; providing temporary use of non-
`downloadable software for searching, organizing, and recommending multimedia content; providing
`temporary use of non-downloadable software for creating and providing user access to searchable
`databases of information and data; providing temporary use of non-downloadable software for wire-
`less content delivery; providing temporary use of non-downloadable software for purchasing, access-
`ing, and viewing content related to sports; providing temporary use of non-downloadablesoftware fea-
`turing sports activities; providing temporary use of non-downloadable software for accessing and
`streaming audiovisual and multimedia content via the internet and global communications networks;
`providing temporary use of non-downloadable software for viewing live sporting events on mobile
`telephones, tablets and personal computers; providing temporary use of non-downloadable soft-
`wareallowing users to upload, post, broadcast, show and display video and audio programming;
`providing temporary use of non-downloadable software for content management, namely, manage-
`ment of video, audio, text and graphic files; providing temporary use of non-downloadable software
`for data analysis, namely, analysis of the frequency and duration of views of online video broadcasts,
`and the location and viewing characteristics of viewers; technical support services, namely,
`troubleshooting of video and audio Internet broadcasting software system problems for users; hosting
`a community website featuring live streaming, video, audio, articles, and statistics in the field of
`sports
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`Marks Cited by Opposer as Basis for Opposition
`
`U.S. Registration
`No.
`
`5078262
`
`Registration Date
`
`11/08/2016
`
`Word Mark
`
`BALLERS
`
`Application Date
`
`08/22/2013
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 009. First use: First Use: 2016/06/14 First Use In Commerce: 2016/06/14
`Pre-recorded DVDs and high definition digital discs featuring a television series
`including both drama and comedy, excluding children's entertainment; digital
`materials, namely, downloadable pre-recorded video files and graphics files re-
`lated to an ongoing television series featuring both drama and comedy, exclud-
`ing children's entertainment
`
`U.S. Registration
`No.
`
`4818470
`
`Registration Date
`
`09/22/2015
`
`Word Mark
`
`Design Mark
`
`BALLERS
`
`Application Date
`
`08/22/2013
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 041. First use: First Use: 2015/06/21 First Use In Commerce: 2015/06/21
`Entertainment services in the nature ofan ongoing television series featuring
`both drama and comedy, excluding children's entertainment; interactive online
`entertainment in the nature of a website containing photographic, video and
`prose presentations and related video clips from or related to a television series
`featuring both drama and comedy, excluding children's entertainment
`
`U.S. Application
`No.
`
`87380848
`
`Application Date
`
`03/22/2017
`
`Registration Date
`
`NONE
`
`Word Mark
`
`BALLERS
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 021. First use: First Use: 0 First Use In Commerce: 0
`Mugs, drinking glasses, glass beverage ware, shot glasses; bar ware, namely,
`bottle openers, cocktail shakers, decanters, wine buckets, wine openers, coolers
`for wine; and sports bottles sold empty
`
`U.S. Application
`No.
`
`87424314
`
`Application Date
`
`04/25/2017
`
`Registration Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`BALLERS
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 028. First use: First Use: 0 First Use In Commerce: 0
`Gaming devices, namely, gaming machines, slot machines; machines for play-
`ing games of chance; darts, dart boards, dart board cases, dart carrying cases,
`dart points, dart shafts, dart stems, dart point sharpeners, dart flights, dart
`games;pool cues, pool cue sticks, pool cue tips, pool cue cases, pool cue racks,
`poolcue repair kits, pool tally balls, billiard pool balls, billiard pool tables, billiard
`pool triangles
`
`Attachments
`
`86045415#TMSN.png( bytes )
`86045062#TMSN.png( bytes )
`87380848#TMSN.png( bytes )
`87424314#TMSN.png( bytes )
`Notice of Opposition - BALLERTV 87657607.pdf(432238 bytes )
`
`Signature
`
`Name
`
`/Tamara Carmichael/
`
`Tamara Carmichael
`
`

`

`Date
`
`09/24/2018
`09/24/2018
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of Application Serial No. 87657607: BALLERTV
`Published in the Official Gazette of Mar. 27, 2018
`
`Home Box Office, Inc.,
`
`Opposer,
`
`v.
`
`Baller, Inc.,
`
`
`
`Applicant.
`
`Opposition No. ________
`
`)
`)
`)
`)
`)
`)
`)
`NOTICE OF OPPOSITION
`
`
`
`Home Box Office, Inc. (“Opposer”), a Delaware corporation, located and doing business
`
`at 1100 Avenue of the Americas, New York, New York 10036, believes it will be damaged by
`
`the registration of the trademark BALLERTV for “computer hardware and computer software
`
`programs for communication and video recording, transmission of video, playback of video;
`
`software for streaming audiovisual and multimedia content via the internet and global
`
`communications networks; software for streaming audiovisual and multimedia content to mobile
`
`digital electronic devices; software for searching, organizing, and recommending multimedia
`
`content; software development tools for creating software and mobile applications; computer
`
`software for creating and providing user access to searchable databases of information and
`
`data; computer software for wireless content delivery; computer software for purchasing,
`
`accessing, and viewing content related to sports; computer software featuring sports activities;
`
`mobile applications for accessing and streaming audiovisual and multimedia content via the
`
`internet and global communications networks; downloadable software for viewing live sporting
`
`events on mobile telephones, tablets and personal computers; software allowing users to
`
`upload, post, broadcast, show and display video and audio programming; software for content
`
`management, namely, management of video, audio, text and graphic files; software for data
`
`analysis, namely, analysis of the frequency and duration of views of online video broadcasts,
`
`and the location and viewing characteristics of viewers” in International Class 009, “streaming
`
`
`4750746-1
`
`1
`
`

`

`
`
`of audiovisual and multimedia content via the Internet; transmission and delivery of audiovisual
`
`and multimedia content via the Internet; video-on-demand transmission services; Live
`
`broadcasting services; broadcasting services, namely, transmission of voice, audio, visual
`
`images and data via digital communications networks; electronic transmission and streaming of
`
`digital media content for others via global and local computer networks; electronic and digital
`
`transmission of audio, video, data, images, signals, and messages via the Internet, electronic
`
`communications networks, computer networks and wireless communications networks” in
`
`International Class 038, “entertainment services in the nature of ongoing television programs
`
`and interactive television programs in the field of sports; entertainment services, namely,
`
`providing a website featuring non-downloadable video clips, film clips and other multimedia
`
`materials all featuring games or sports; providing information in the field of entertainment in
`
`the nature of pre-game and post-game recaps and analysis, line-up introductions, press
`
`conferences, venue announcements, interviews and discussions regarding a particular athlete,
`
`sports or historical documentaries; entertainment information regarding athlete drafts and draft
`
`picks, and video highlights, previews and analysis, all of the above in the field of sports, news,
`
`film and theater via television, the Internet, electronic communications networks, computer
`
`networks and wireless communications network; providing automated filming of sports games”
`
`in International Class 041, and “providing temporary use of non-downloadable software for
`
`streaming audiovisual and multimedia content via the internet and global communications
`
`networks; providing temporary use of non-downloadable software for streaming audiovisual
`
`and multimedia content to mobile digital electronic devices; providing temporary use of non-
`
`downloadable software for searching, organizing, and recommending multimedia content;
`
`providing temporary use of non-downloadable software for creating and providing user access
`
`to searchable databases of information and data; providing temporary use of non-
`
`downloadable software for wireless content delivery; providing temporary use of non-
`
`downloadable software for purchasing, accessing, and viewing content related to sports;
`
`
`4750746-1
`
`2
`
`

`

`
`
`providing temporary use of non-downloadable software featuring sports activities; providing
`
`temporary use of non-downloadable software for accessing and streaming audiovisual and
`
`multimedia content via the internet and global communications networks; providing temporary
`
`use of non-downloadable software for viewing live sporting events on mobile telephones,
`
`tablets and personal computers; providing temporary use of non-downloadable software
`
`allowing users to upload, post, broadcast, show and display video and audio programming;
`
`providing temporary use of non-downloadable software for content management, namely,
`
`management of video, audio, text and graphic files; providing temporary use of non-
`
`downloadable software for data analysis, namely, analysis of the frequency and duration of
`
`views of online video broadcasts, and the location and viewing characteristics of viewers;
`
`technical support services, namely, troubleshooting of video and audio Internet broadcasting
`
`software system problems for users; hosting a community website featuring live streaming,
`
`video, audio, articles, and statistics in the field of sports” in International Class 42 in Application
`
`Serial No. 87657607 (the “Application”), owned by Baller, Inc. (“Applicant”), and hereby
`
`opposes the same.
`
`As grounds for this opposition, Opposer alleges:
`
`1.
`
`Opposer operates well-known and widely distributed premium television channels
`
`and is the producer of the television series “Ballers.”
`
`2.
`
`Prior to the filing of Applicant’s Application, Opposer has produced, marketed, and
`
`distributed the “Ballers” television series, with its attendant trade dress, logos, and designs (the
`
`“BALLERS Marks”).
`
`3.
`
`Opposer owns registrations and applications for its BALLERS Marks with the
`
`United States Patent and Trademark Office, including, but not limited to:
`
`
`1.
`
`Mark
`BALLERS
`
`App. No. Reg. No. Class/Goods/Services
`86045415 5078262
`009 - Pre-recorded DVDs and high
`
`
`4750746-1
`
`3
`
`

`

`86045062 4818470
`
`87380848
`
`
`
`87424314
`
`
`
`
`
`
`
`Mark
`
`2.
`
`BALLERS
`
`3.
`
`BALLERS
`
`4.
`
`BALLERS
`
`App. No. Reg. No. Class/Goods/Services
`definition digital discs featuring a
`television series including both drama
`and comedy, excluding children's
`entertainment; digital materials, namely,
`downloadable pre-recorded video files
`and graphics files related to an ongoing
`television series featuring both drama
`and comedy, excluding children's
`entertainment
`041 - Entertainment services in the
`nature of an ongoing television series
`featuring both drama and comedy,
`excluding children's entertainment;
`interactive online entertainment in the
`nature of a website containing
`photographic, video and prose
`presentations and related video clips
`from or related to a television series
`featuring both drama and comedy,
`excluding children's entertainment
`021 - Mugs, drinking glasses, glass
`beverage ware, shot glasses; bar ware,
`namely, bottle openers, cocktail
`shakers, decanters, wine buckets, wine
`openers, coolers for wine; and sports
`bottles sold empty
`028 - Gaming devices, namely, gaming
`machines, slot machines; machines for
`playing games of chance; darts, dart
`boards, dart board cases, dart carrying
`cases, dart points, dart shafts, dart
`stems, dart point sharpeners, dart
`flights, dart games; pool cues, pool cue
`sticks, pool cue tips, pool cue cases,
`pool cue racks, pool cue repair kits, pool
`tally balls, billiard pool balls, billiard pool
`tables, billiard pool triangles
`
`
`The foregoing registrations and applications are valid, subsisting, and owned by Opposer.
`
`4.
`
`By virtue of the popularity of Opposer’s goods and services offered or sold in
`
`connection with the BALLERS Marks, Opposer has built up and now owns valuable goodwill,
`
`which is symbolized by its BALLERS Marks.
`
`5.
`
`Applicant’s application for, proposed use, and/or actual use of BALLERTV for
`
`
`4750746-1
`
`4
`
`

`

`
`
`“computer hardware and computer software programs for communication and video recording,
`
`transmission of video, playback of video; software for streaming audiovisual and multimedia
`
`content via the internet and global communications networks; software for streaming audiovisual
`
`and multimedia content to mobile digital electronic devices; software for searching, organizing,
`
`and recommending multimedia content; software development tools for creating software and
`
`mobile applications; computer software for creating and providing user access to searchable
`
`databases of information and data; computer software for wireless content delivery; computer
`
`software for purchasing, accessing, and viewing content related to sports; computer software
`
`featuring sports activities; mobile applications for accessing and streaming audiovisual and
`
`multimedia content via the internet and global communications networks; downloadable software
`
`for viewing live sporting events on mobile telephones, tablets and personal computers; software
`
`allowing users to upload, post, broadcast, show and display video and audio programming;
`
`software for content management, namely, management of video, audio, text and graphic files;
`
`software for data analysis, namely, analysis of the frequency and duration of views of online
`
`video broadcasts, and the location and viewing characteristics of viewers” in International Class
`
`009, “streaming of audiovisual and multimedia content via the Internet; transmission and delivery
`
`of audiovisual and multimedia content via the Internet; video-on-demand transmission services;
`
`Live broadcasting services; broadcasting services, namely, transmission of voice, audio, visual
`
`images and data via digital communications networks; electronic transmission and streaming of
`
`digital media content for others via global and local computer networks; electronic and digital
`
`transmission of audio, video, data, images, signals, and messages via the Internet, electronic
`
`communications networks, computer networks and wireless communications networks” in
`
`International Class 038, “entertainment services in the nature of ongoing television programs
`
`and interactive television programs in the field of sports; entertainment services, namely,
`
`providing a website featuring non-downloadable video clips, film clips and other multimedia
`
`materials all featuring games or sports; providing information in the field of entertainment in the
`
`
`4750746-1
`
`5
`
`

`

`
`
`nature of pre-game and post-game recaps and analysis, line-up introductions, press
`
`conferences, venue announcements, interviews and discussions regarding a particular athlete,
`
`sports or historical documentaries; entertainment information regarding athlete drafts and draft
`
`picks, and video highlights, previews and analysis, all of the above in the field of sports, news,
`
`film and theater via television, the Internet, electronic communications networks, computer
`
`networks and wireless communications network; providing automated filming of sports games”
`
`in International Class 041, and “providing temporary use of non-downloadable software for
`
`streaming audiovisual and multimedia content via the internet and global communications
`
`networks; providing temporary use of non-downloadable software for streaming audiovisual and
`
`multimedia content to mobile digital electronic devices; providing temporary use of non-
`
`downloadable software for searching, organizing, and recommending multimedia content;
`
`providing temporary use of non-downloadable software for creating and providing user access to
`
`searchable databases of information and data; providing temporary use of non-downloadable
`
`software for wireless content delivery; providing temporary use of non-downloadable software for
`
`purchasing, accessing, and viewing content related to sports; providing temporary use of non-
`
`downloadable software featuring sports activities; providing temporary use of non-downloadable
`
`software for accessing and streaming audiovisual and multimedia content via the internet and
`
`global communications networks; providing temporary use of non-downloadable software for
`
`viewing live sporting events on mobile telephones, tablets and personal computers; providing
`
`temporary use of non-downloadable software allowing users to upload, post, broadcast, show
`
`and display video and audio programming; providing temporary use of non-downloadable
`
`software for content management, namely, management of video, audio, text and graphic files;
`
`providing temporary use of non-downloadable software for data analysis, namely, analysis of the
`
`frequency and duration of views of online video broadcasts, and the location and viewing
`
`characteristics of viewers; technical support services, namely, troubleshooting of video and audio
`
`Internet broadcasting software system problems for users; hosting a community website
`
`
`4750746-1
`
`6
`
`

`

`
`
`featuring live streaming, video, audio, articles, and statistics in the field of sports” in International
`
`Class 42 (“Applicant’s Goods/Services”) is without Opposer’s consent or permission.
`
`COUNT I – LIKELIHOOD OF CONFUSION
`
`Opposer realleges the allegations of Paragraphs 1 through 5.
`
`Applicant’s proposed use and/or actual use of BALLERTV in connection with
`
`6.
`
`7.
`
`Applicant’s Goods/Services is likely to cause confusion, mistake, or deception in that consumers
`
`are likely to believe that Applicant’s Goods/Services are Opposer’s Goods/Services, or the
`
`goods/services of a person or company that is sponsored, authorized or licensed by, or in some
`
`other way legitimately connected with, Opposer.
`
`WHEREFORE, Opposer respectfully requests that this opposition be sustained and that
`
`Application Serial No. 87657607 be denied registration.
`
`Please debit our Deposit Account No. 504261 for the filing fee and for any additional
`
`necessary fees.
`
`Please address all correspondence to: Tamara F. Carmichael, Esq., OLSHAN FROME
`
`WOLOSKY LLP, 1325 Avenue of the Americas, New York, New York 10019.
`
`
`
`
`
`OLSHAN FROME WOLOSKY LLP
`
`/s/ Tamara Carmichael
`Tamara Carmichael
`1325 Avenue of the Americas
`New York, New York 10019
`Tel: 212-451-2300
`Email: tcarmichael @olshanlaw.com,
`aprovencio@olshanlaw.com
`
`Attorneys for Opposer, Home Box Office, Inc.
`
`
`
`
`Date: September 24, 2018
`
`
`
`
`
`
`4750746-1
`
`7
`
`