Each of the parties to this Section 2(d) cancellation proceeding filed a motion for summary judgment. Respondent stipulated to petitioner’s priority, as well as to all of the essential DuPont factors except the first factor: the similarity or dissimilarity of the marks. The Board granted one of the motions, but which one? Are the marks YOU’RE AN IDIOT and YOU MUST BE AN IDIOT confusingly similar or not? R & R Games, Inc. v. TwoPointOh Games, Cancellation No. 92076580 (May 23, 2022) [not precedential].
The Board began by noting that the filing of cross-motions for summary judgment does not mean that there is no genuine dispute of material fact or that a trial is unnecessary. Each moving party bears the burden of proof on its own motion, and on each motion all doubts and inferences are resolved in favor of the non-movant.
Petitioner contended that the commercial impressions of the marks are identical and that any minor differences in punctuation and sentence structure are irrelevant. Both marks comprise a short declarative phrase that calls a game participant an IDIOT. Both marks are “implied conditionals” in which the “linking verbs” mean the same thing. Both marks begin with YOU and end with IDIOT, the word IDIOT being the dominant element. Petitioner further claimed that consumers are accustomed to encountering new product bearing substantially similar trademarks from the same source: e.g., game sequels and expansion packs.
Respondent perceptively pointed out that both marks do not begin with the term YOU, argued that it is irrelevant whether certain elements in each of the marks mean the same thing, and asserted that Petitioner’s evidence regarding new product naming actually showed that identical marks were used.
The Board sided with the Petitioner:
Respondent’s mark YOU’RE AN IDIOT is extremely similar in appearance and sound to Petitioner’s mark YOU MUST BE AN IDIOT! as they end with the same distinctive AN IDIOT and begin with related wording. *** The term “MUST” in Petitioner’s mark merely indicates the absence of any doubt that the person on the receiving end of the message is “an idiot.”
Furthermore, noting that the focus of the Section 2(d) inquiry is on the recollection of the average purchaser who normally retains a general rather than a specific impression of marks, the Board found the marks to be “the same, or nearly so, in meaning and impression as they constitute essentially the same insult – telling a person, in this case a particular player in the game, that they are ‘foolish or stupid.'”
Finding no genuine dispute on the issue of likelihood of confusion, the Board entered judgment summarily in favor of petitioner.
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Text Copyright John L. Welch 2022.