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.
