intellectual property

July 8, 2022July 7, 2022

BRANDING IDIOT GAMES

When two idiots go to battle only a fool can win. But which one? R&R Games, Inc. produces and sells a board game with the title and brand name “YOU MUST BE AN IDIOT!” In 2006, the US Patent & Trademark Office (the “USPTO”) granted trademark registration for the mark, reg. no. 3137118.

Late comer TwoPointOh Games produces and sells a card game and cards for games under the title and brand name “YOU’RE AN IDIOT” and obtained a trademark registration in 2018, reg. no. 5524635. However, R&R Games was not amused. Instead of taking its marbles and going home, R&R Games filed a cancellation proceeding with the USPTO’s Trademark Trial and Appeal Board (the “TTAB”) seeking to cancel TwoPointOh’s registration. On May 23, 2022, the TTAB decided the battle between:

The TTAB took note that the respective products are strongly related, the channels of trade identical, both advertised via the same methods, and sold through the same outlets. Further, both products could be sold to and used by the same type of consumers, who are considered of ordinary sophistication. The latter point can be important because highly sophisticated consumers of sophisticated, expensive products tend to be more discerning of what they are purchasing. Conversely, consumers of ordinary sophistication would tend to be less discerning, especially with much less expensive consumer products.

The TTAB then analyzed the respective marks. The Board found the marks to be “extremely similar in appearance and sound” because of the dominant use of the word “IDIOT” in both. Furthermore, the Board found that the meaning and impression of both marks “constitute essentially the same insult,” i.e., calling someone a fool. From the perspective of the average purchaser, both marks are nearly the same. Of course, it doesn’t help that the packaging of both products have a similar look as well. Accordingly, the TTAB found in favor of R&R Games’ “YOU MUST BE AN IDIOT,” granting the petition to cancel “YOU’RE AN IDIOT.”

The lesson here for businesses is pretty straight-forward: don’t play idiot games and foolishly adopt marks similar to other brands that can hoodwink consumers with confusion.

December 6, 2017December 7, 2017

Family Names & Trademarks — Family-Owned Winery Loses Its Brand and Name

“Where the offense is, let the great axe fall.” — Claudius in Hamlet.

Here’s a recent situation where a family-owned business failed to do some due diligence, chose to adopt their family name as their brand name and trademark, and in the end created an offense that brought down the axe — a story of two wineries in “The Blair Family vs. The Blair Family.”

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October 17, 2017November 29, 2017

Surf’s Up! — Surf School Trademark War Ends Badly For The Bully

Here’s another one to file under the maxim “use it or lose it,” from a recent decision in the Trademark Trial and Appeal Board (“TTAB”) that is also an example of how people with inflated importance often fail to pay attention to the finer details, to their detriment.

Surfing is a competitive sport and that spirit of rivalry extends to businesses teaching the sport of surfing. In this instance, a late comer to the surfing school business in Santa Cruz, California, decided to threaten an established competitor with trademark infringement.

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September 19, 2017December 6, 2017

Dark Web Drug Dealer’s Trademark Application Gets Him Nailed

The subject of this article could be filed in the category of “dumb criminals.” And here’s why.

In 2015, David Ryan Buchard of Merced, California, was already under investigation by the US Postal Inspector and a special agent for Homeland Security Investigation (“HSI”) for suspicion of drug dealing. They believed that Buchard was doing his transactions on a dark web drug marketplace known as The Silk Road. They were trying to track Buchard’s Bitcoin transactions on The Silk Road. Bitcoin is a form of digital money technically known as “crypto-currency,” as opposed to “fiat-currency” (i.e., money created and regulated by governments). Crypto-currencies, including Bitcoin, are legal for private transactions, but are very often used by drug traffickers because the users’ real identities are cloaked by pseudonyms.

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September 12, 2017December 6, 2017

Is Your Brand Generic? — When Grilled Meat Means Just Grilled Meat

Too often businesses, in conceiving their brand names and the marks/logos that represent their brands, adopt really weak marks that can have disastrous consequences. In the case at hand, a restaurant chain adopted as its service mark a Spanish/Portuguese word that literally means “grilled meat” in English. As it turned out, it seems that “grilled meat” means nothing more than “grilled meat” rather than a brand name for the restaurant’s services.

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