Brian Walter and Karen Walter

Trademark Trial and Appeal Board

Jul 23, 2020

88005615 (T.T.A.B. Jul. 23, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: July 23, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Brian Walter and Karen Walter
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Serial No. 88005615
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C. Russell Riddle of The Riddle Firm for Brian Walter and Karen Walter.

Christina Calloway, Trademark Examining Attorney, Law Office 122,
Kevin Mittler, Managing Attorney.
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Before Bergsman, Shaw and Lynch,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Brian Walter and Karen Walter (Applicants) seek registration on the Principal
Register of the mark FACT OR CRAP, in standard characters, for “Entertainment
services, namely, hosting social entertainment events in the nature of live all-
audience game show formatted meetings, uniquely customized for each corporate
client, organization, association or industry,” in International Class 41.1

1 Application Serial No. 88005615 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1(a), on June 19, 2018, claiming dates of first use anywhere and in commerce of
September 17, 2001.
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Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicants’ mark, when used with the identified
services, so resembles the marks FACT OR CRAP, in typed form, for “Toys, namely,
parlor games and board games,” in International Class 28,2 and FACT OR CRAP, in
standard characters, for, inter alia, “Television entertainment services, namely, the
operation of an internet website featuring television webcasts in the field of game
shows and quiz shows; [and] distribution of television programming to cable and
satellite television systems; entertainment services in the nature of an on-going series
of shows, namely, game show programs,”3 in International Class 41, as to be likely to
cause confusion, mistake or deception. The cited marks are commonly owned. The
Examining Attorney also refused registration on the ground that the specimens of
record do not show the applied-for mark in use in commerce. The Examining Attorney
withdrew the specimen refusal in her brief.4
When the refusals were made final, Applicants appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. The case is fully briefed. We affirm the Section 2(d) refusal to
register.

2 Registration No. 2663264, issued December 17, 2002, renewed.
3 Registration No. 4582463, issued on August 12, 2014.
4 Examining Attorney’s Br., 11 TTABVUE 3.
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I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the goods and services and the similarities between the marks. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods [and services] and differences in the
marks.”).
A. Similarity of the marks
Applicants’ mark is identical to the marks in the cited registrations in
“appearance, sound, connotation and commercial impression.”5 Palm Bay Imps. Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). Applicants do not
dispute this.
In view thereof, the DuPont factor of the similarity of the marks weighs heavily
in favor of a finding of likelihood of confusion.

5 A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (explaining that in 2003 there was a
non-substantive change in nomenclature from a “typed mark” to a “standard character
mark”).
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B. The similarity of the goods and services and channels of trade
We next consider the similarity of the goods and services and channels of trade. It
is well settled that in making our determination, we must look to the services as
identified in the application vis-à-vis the goods and services recited in the cited
registrations. Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods [and services] set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods [and services]”).
Moreover, where, as here, the respective marks are identical, the degree of
similarity or relatedness between the goods and services needed to support a finding
of likelihood of confusion declines. See In re i.am.symbolic, llc, 116 USPQ2d 1406,
1411 (TTAB 2015) (citing In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687,
1689 (Fed. Cir. 1993)), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017)
Both Applicants’ services and Registrant’s goods and services are related to
games, particularly trivia games. Applicants’ services are identified as
“Entertainment services, namely, hosting social entertainment events in the nature
of live all-audience game show formatted meetings, uniquely customized for each
corporate client, organization, association or industry.” These game shows feature
trivia questions about the organizations conducting the corporate meetings and are
offered as an employee engagement activity for the meetings. Applicants’ specimen
describing the FACT OR CRAP entertainment services explains how the game is
played at these corporate events:
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Fact or Crap™ A parody game show
An INSTANT way to engage everyone is with our all-
audience game show “Fact or Crap™.”
Brian says, “I’ve done the math. There are about 1,900
attendees here today. Each with an average of six years
tenure at (YOUR COMPANY). That means, together, in
this very room there’s over 13 millennia of expertise about
all things (YOUR INDUSTRY). But only ONE of you is the
MOST knowledgeable. And we are going to find out who
that is by playing a very sophisticated and competitive
interactive game called FACT…or CRAP!” (The audience
roars at the unexpected name.)
Brian has everyone stand. He then shares highly specific
factoids about your organization. After each one, the
audience shouts out “Fact” (meaning they think it’s is true)
or “Crap” (meaning they think it’s made up). Brian reveals
the correct answer and everyone who gets it wrong sits
down. This continues until just ONE person is left
standing. They are the winner!6
Registrant’s FACT OR CRAP parlor and board games consist of a similar trivia
game featuring general information questions and answers:7

6 Application of June 19, 2018.
7 Office Action dated October 22, 2018, TSDR pp. 10-11, Applicants’ Response to Office Action
dated March 7, 2019, p. 20.
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Registrant’s game show entertainment services include “an on-going series of
shows, namely, game show programs,” as well as the provision of “game shows and
quiz shows” offered online via internet websites, and distributed to “cable and
satellite television systems.”8 Thus, both Applicants’ services and Registrant’s goods
and services involve similar trivia-based games, differing only in question subject
matter and method of participation. Moreover, Registrant’s broadly worded
“entertainment services in the nature of an on-going series of shows, namely, game
show programs” could encompass Applicants’ narrowly defined entertainment
services related to “social entertainment events in the nature of all-audience game
show formatted meetings.” See In re Hughes Furniture Indus., Inc., 114 USPQ2d

8 Registration No. 2663264.
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1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”).
The Examining Attorney argues that third parties provide similar game show
entertainment services to industry groups, and that these services include activities
based on other well-known games. In the Examining Attorney’s words, these third
parties are “providing the same or similar services as applicant specifically creating
a connection between the same or similar goods and services as registrant’s such that
a likelihood of confusion between the marks and related goods and services is likely.”9
In support of this industry practice, the Examining Attorney introduced web page
excerpts showing that at least seven other companies provide similar event-
entertainment games based on television game shows and board games:
 Meridia Interactive Solutions (meridiaars.com) offers meeting
entertainment services, including games based on the television game
shows and board games Jeopardy and Are You Smarter Than a 5th
Grader?10 The webpage explains that the company’s “EZ-CATEGORIES
interactive meeting game is similar to the hit TV show Jeopardy” and its
“EZ-SCHOLAR is a team-based game similar to the popular TV game show
“Are You Smarter Than a 5th Grader.”11

9 Examining Attorney’s Br., 11 TTABVUE 7.
10 October 22, 2018 Office Action, TSDR pp. 15-16, 24. April 17, 2019 Office Action, TSDR pp.
2-9.
11 October 22, 2018 Office Action, TSDR p. 16.
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 Padgett Communications (pcipro.com) offers the hosting of “Audience
interaction trivia contests” and its webpage states that “Trivia contests are
great for ice-breaking . . . . Other ways to encourage audience feedback
include: Game shows like Jeopardy!”12
 It’s PlayTyme Game Shows (itsplaytyme.com) offers ice-breaking games for
meetings, including games based on television game shows and board
games, such as: “FACE 2 FACE FEUD” based on Family Feud, “WORD
PLAY” based on Wheel of Fortune, and “The CHALLENGE” based on
Jeopardy.13
 Fusion Associates (fusionteambuilding.com) offers “Team Building and
Corporate Training . . .” based on television games shows including
“Hollywood Squares, Jeopardy, Family Feud, Deal-Or-No-Deal, [and]
Wheel of Fortune!”14
 Wow VIP Events (wowvipevents.com) offers event-entertainment for
meetings, and features games based on the television show and board game
Deal or No Deal.15

12 Id. at 28-34.
13 Id. at 35-59.
14 Id. at 60-62.
15 April 17, 2019 Office Action, TSDR pp. 29-36.
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 The Leader’s Institute (leadersinstitute.com) offers event team-building
activities including a game called “X Idol’s Got Talent” show based on the
television game show American Idol.16
 TheGreatEvent.com (thegreatevent.com) offers entertainment services
featuring customized games shows based on the television game show and
board game The Price Is Right.17
The foregoing evidence establishes that third-party event-entertainment and
team-building companies, such as Applicants’ business, offer meeting activities based
on television game shows and board games. These game-based activities generally
are offered under different marks to distinguish them from the original shows.
However, the entertainment services companies usually explain the inspiration for
the re-named game, for example, EZ-CATEGORIES is based on Jeopardy, FACE 2
FACE FEUD is based on Family Feud, and WORD PLAY is based on Wheel of
Fortune. We agree with the Examining Attorney that this practice of repurposing
well-known television game shows and board games for team-building exercises
creates a connection between Applicants’ services and the game show and board game
offered by Registrant. Unlike the majority of the foregoing third-party examples,
Applicants do not use a different mark to distinguish their services from Registrant’s
game show and board game. Rather, Applicants have adopted FACT OR CRAP in its
entirety and modified only the format of the game to suit prospective customers.

16 Id. at 23-28.
17 Id. at 37-41.
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Accordingly, we find consumers familiar with Registrant’s FACT OR CRAP game
show and board game would be likely to believe that Applicants’ entertainment
services were a related service directed to corporate and industry events.
Applicants nevertheless argue that the goods and services are different because
they “are target-marketed to different, non-overlapping groups of consumers, serve
different purposes and, indeed, involve different goods/services.”18 This argument is
unpersuasive. The respective goods and services need not be identical or even
competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online
Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v.
Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only
be “related in some manner and/or if the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that [the goods and services]
emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Here, the equivalence of the
underlying FACT OR CRAP game, offered by both Applicants and Registrant,
provides the necessary connection to support a consumer’s “mistaken belief that [the
goods and services] emanate from the same source.” Id.
Regarding channels of trade, given that Applicants’ entertainment services are
limited to hosting “all-audience game show formatted meetings,” we agree that there
are differences in the channels of trade as compared to Registrant’s board games. But

18 Applicants’ Br., p. 11, 8 TTABVUE 12.
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Registrant’s game show programs could be featured at corporate events similar to
those at which Applicants entertain. Indeed, as shown by the third-party examples,
some corporate events are currently being entertained by facsimiles of comparable
game shows.
The DuPont factor regarding the similarity of the goods and services weighs in
favor of a finding of a likelihood of confusion. The DuPont factor regarding channels
of trade weighs in favor of a finding of a likelihood of confusion with respect to the
cited registration for entertainment services, but weighs against such a finding with
respect to the cited registration for board games.
C. The Degree of Consumer Care
Applicants urge us to consider the consumer sophistication and degree of
purchaser care likely to be exercised when consumers seek the services at issue. We
are bound by the respective identifications of goods and services, which are not
limited to particular industries or price points. See, e.g., Bose Corp. v. QSC Audio
Prods., Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1310-11 (Fed. Cir. 2002); Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1
USPQ2d 1813, 1816 (Fed. Cir. 1987), citing CBS, Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198 (Fed. Cir. 1983).
Applicants argue that the substantial cost of Applicants’ services compared to the
price of Registrant’s “wares” suggest “[n]either party’s consumers have confusion as
to source.”19 Applicants argue that its fees range from “$10,000 to $15,000 and

19 Applicants’ Br., p. 13, 8 TTABVUE 14.
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sometimes more” per meeting “[w]hereas Registrant’s wares average $50 or less.”20
We first note that Registrant’s board games may indeed cost $50 or less, but we have
no information regarding the cost of Registrant’s services which include the
“distribution of television programming to cable and satellite television systems;
[and] entertainment services in the nature of an on-going series of shows, namely,
game show programs.” Because these services are directed to cable and satellite
television systems, they are likely to be far more expensive and closer to Applicants’
services in price. Nevertheless, given the cost of Applicants’ services, we expect that
Applicants’ corporate consumers may exercise a certain degree of care in seeking
entertainment for its meetings, even if Registrant’s may not. Thus, consumer
sophistication weighs slightly against finding a likelihood of confusion.
D. Parody
Applicants’ webpage specimen identifies its FACT OR CRAP services as “A parody
game show.”21 Both the Examining Attorney and Applicants argue whether
Applicants’ mark is registrable because it is a parody of Registrant’s mark. We find
this discussion to be beside the point. We fail to see how Applicants’ mark is a parody
inasmuch as Applicants’ mark is identical to Registrant’s mark, and the respective
goods and services are based on a similar game. See MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION, § 31.153 (5th ed. June 2020) (“[A] successful parody [means] the
ordinary observer can perceive that the defendant is not connected in any way with

20 Id. See Applicants’ Response to Office Action dated March 7, 2019, TSDR p. 3.
21 Application of June 19, 2018.
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the owner of the target trademark.”). We find nothing parodic about the nature of
Applicants’ mark that would render confusion unlikely.
E. Conclusion
Because the marks are identical and the goods and services are related, there is a
likelihood of confusion between Applicants’ mark, FACT OR CRAP, and the mark
FACT OR CRAP in the cited registrations. Consumer sophistication and any
differences in the channels of trade are insufficient to overcome the identity of the
marks and the relatedness of the services.
Decision: The refusal to register Applicants’ mark FACT OR CRAP is affirmed.