BRANDING IDIOT GAMES

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:

Idiot Games

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.

DESIGN MARKS – WHEN IS AN ELK REALLY A MOOSE? WHEN THE JUDGE SAYS SO…?

Sometimes there are legal decisions that test reality.  A recent decision from the Trademark Trial and Appeal Board (the “TTAB”) found that marks using designs of certain quadrupeds are confusingly similar despite the fact that animals depicted are completely different species.  In  Abercrombie & Fitch Trading Co. v. Isabella Elisabeth Shnittger, Opposition No. 91218738 (August 12, 2019), the TTAB compared the bull moose design marks of opposer Abercrombie & Fitch against that mark  of applicant Isabella Schnittger showing a bugling bull elk which also included the word mark “RED DEAR”:

The TTAB found that the Abercrombie’s Moose trademarks, while not famous, are nonetheless “’renowned’ in the clothing market, and commercially quite strong.”  Applicant’s goods and opposer’s goods — i.e., clothing items — are essentially identical and therefore would be present together in the same channels of trade.  Applicant conceded that both her mark and Abercrombie’s marks depict four-legged animals with antlers and are depicted in full-bodied profiles.  However, the judge acknowledged that there are differences:

To be sure, there are also differences between the animals, as their antlers are not the same and their heads are shaped differently and in somewhat different positions. The mouth in Applicant’s deer is open, perhaps because it is calling out or consuming something 

Nonetheless, the judge concluded that clothing consumers would likely be confused by the marks because “the recollection of the average purchaser … normally retains a general rather than a specific impression.”  In other words, the “average purchaser,” whoever that may be, somehow cannot to see the difference between a moose (Abercrombie’s mark) and an elk (Schnittger’s mark).  Given the “renowned” nature of Abercrombie’s marks and the identity of the parties goods, the overall general visual impression of the marks, there was sufficient basis for a likelihood of confusion.  Accordingly, the TTAB sustained Abercrombie’s opposition.  

Perhaps the judge spends too much time in the urban swamp environs of Washington D.C. and should get out to the forests and hills.  But in fairness to the judge, the applicant may be confused about the nature of her own mark. The word mark “RED DEAR,” in Ms. Schnittger’s mark, is an apparent play on the homonym “deer,” but her design is the silhouette of an elk.  Even though different critters are, well, different, it would appear that the average person may get confused after all between image of a moose and an elk, or a deer for that matter.  

In any case, the take-away here is that businesses will need to make sure that the “general impression” of their visual design marks are sufficiently different from design marks of others in their field to avoid confusion, and not rely on any specific details in their marks that may be different.  

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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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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Dark Web Drug Dealer’s Trademark Application Gets Him Nailed

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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