Fair Isaac Corporationv.ConsumerInfo. Com, Inc.

Trademark Trial and Appeal Board

Sep 30, 2013

No. 91178303 (T.T.A.B. Sep. 30, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
September 19, 2012 September 30, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Fair Isaac Corporation
v.
ConsumerInfo.Com, Inc.
_____

Opposition No. 91178303
to application Serial No. 78955572

_____

Timothy M. Kenny, Laura J. Borst and Renee S. Kraft of Fulbright & Jaworski LLP, for Fair
Isaac Corporation.

Carol Anne Been, Rebecca Stroder and Katherine L. Staba of SNR Denton US, for
ConsumerInfo.Com, Inc.

Before Kuhlke, Cataldo and Taylor, Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

ConsumerInfo.com (“Applicant” or “CIC”), seeks registration on the Principal Register
of the mark KNOW YOUR SCORE, in standard character form, for “credit reporting services;
credit information provided by electronic means,” and “providing information in the financial
and credit fields” in International Class 36.1 The application includes a claim of ownership of

1 Application Serial No. 78955572, filed August 18, 2006, alleging September 26, 1998 as the date of first
use anywhere and in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition 91178303

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Registration No. 2422711 for the mark KNOW YOUR SCORE for “providing credit report
information to perspective [sic] first mortgagers.”2
Fair Isaac Corporation (“opposer” or “FIC”), has opposed registration of the mark on the
grounds that the phrase KNOW YOUR SCORE is merely descriptive of the identified services,
and has not become distinctive of the services. (Not. of opp. ¶¶ 4 and 5). Opposer particularly
alleges that relevant consumers would recognize the proposed mark to refer to “credit scores and
credit scoring and reporting services” and that “numerous third parties use the phrase “know
your score” or similar phrases when referring to credit scores and credit scoring and reporting
services.”3 (Not. of opp. ¶¶ 6 and 7).
ConsumerInfo.com, Inc. (“applicant” or “CIC”), in its answer, has admitted that
“Opposer develops and distributes computer software and other analytical tools and provides
consulting services and information in the field of credit and credit scoring throughout the United
States,” but otherwise has denied the salient allegations of the notice of opposition. As an
affirmative defense, applicant asserts that it already owns a federal trademark registration for the
identical mark for substantially similar services, namely, Registration No. 2422711, such that the
involved application causes no added injury to opposer.4 (Answer § 2).
Preliminary Matters

2 Issued January 23, 2001, renewed.
3 We note that opposer’s notice of opposition also includes the ground that applicant’s mark is generic of
the identified services. This claim, however, only appears on the ESTTA cover sheet portion of the
notice, which was filed on July 10, 2007, and neither party argued the issue in its brief. In addition,
opposer’s counsel, during the oral argument held on September 19, 2012, indicated that opposer had
withdrawn this claim. Accordingly, we give it no further consideration.
4 We consider the balance of the allegations set forth under the caption “Affirmative Defenses” to merely
amplify applicant’s denials.
Opposition 91178303

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The parties stipulated that all documents (bates numbered and produced in discovery) by
any party in response to the Requests for Production of Documents are authentic and can be
introduced by either party by a notice of reliance. The parties further stipulated that all
interrogatory responses and discovery deposition testimony, with exhibits, are authentic and can
be introduced by either party by a notice of reliance. Opp. NOR exh. A, App. NOR exh. 1.
While the Board allows parties to stipulate to the manner that evidence is introduced into
the record, that evidence must conform to the “form of submission” requirements set forth in
Trademark Rule 2.126. In this regard, we note that both opposer and applicant have submitted
on CD-ROM the discovery depositions of Michael Balducci, Shon Dellinger and Darcy Sullivan,
and exhibits corresponding thereto. At one time evidence could be made of record in this
manner pursuant to Trademark Rule 2.126(b). However, by amendment effective August 31,
2007 and applicable to all cases pending or commenced on or after that date, Trademark Rule
2.126(b) no longer accords parties the option of making submissions to the Board in CD-ROM
form.5 See e.g., Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101
USPQ2d 1731, 1734 n.5 (TTAB 2012) (petitioner submitted CD-ROM versions of the testimony
depositions, as well as the printed versions, and was advised that it was not necessary to submit
the CD-ROMs and that the rules no longer provided that testimony can be submitted in this
manner). Because the above-noted discovery depositions were not filed on paper or by
electronic means as required under the operative Trademark Rule, they have not be considered in

5 Notice thereof is posted on the Trademark Trial and Appeal Board (TTAB) page of the USPTO
internet website at http://www.uspto.gov/web/offices/com/sol/notices/72fr42242.pdf
http://www.uspto.gov/web/offices/com/sol/notices/72fr42242_
FinalRuleChart.pdf.
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this decision. We also have not considered any of the corresponding exhibits, except to the
extent that they also were properly made of record via paper or electronic submission.6
Last, both parties filed numerous evidentiary objections on the grounds of relevance,
hearsay, lack of foundation, competence and materiality.7 Indeed, each has objected to
substantially all of the evidence submitted by the other. The Board is capable of weighing the
relevance and strength or weakness of the objected-to evidence in the cases litigated before us,
including any inherent limitations, and this precludes the need to strike the evidence. Given the
circumstances in this case, and the sheer number of objections, we choose not to make specific
ruling on each and every objection. Ultimately, except as otherwise noted, we have considered
the entire record, keeping in mind the parties’ various objections, and have accorded the
evidence whatever probative value it merits.
The Record
By operation of Trademark Rule 2.122(b), the record includes the pleadings and the file
history of the subject application. 37 CFR § 2.122(b). In addition, and subject to the above,
opposer properly made of record during its testimony and rebuttal testimony periods notices of
reliance on: interrogatory responses of both parties; dictionary definitions of the terms, “know,”
“your” and “score”; copies of documents introduced in this proceeding, including creative
advertising briefs showing applicant’s use or planned use of KNOW YOUR SCORE, internet

6 In making this ruling we make clear that exhibits consisting of videotapes or audiotapes of
commercials, demonstrations, etc., may be transferred to an appropriate electronic format for submission
to the Board and, thus, we have accepted these materials. See generally TBMP §106.03 (3d ed. 2011).
7 We specifically note that the parties raised objections to certain depositions and exhibits, i.e., opposer’s
exhibits. E, F and G and applicant’s exhibits 4, 5 and 6, that were submitted on CD-ROM. Because of
our decision to exclude these depositions and exhibits for the reasons discussed above, we need not
consider these objections, except to the extent the evidence was submitted properly and additionally
objected to. We further note that in response to an objection raised by opposer, applicant withdrew its
reliance on Exhibit 20 to its notice of reliance.
Opposition 91178303

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materials purportedly showing descriptive use by applicant of the designation KNOW YOUR
SCORE and derivations thereof; copies of applicant’s banner adds, photographs of sports venue
signage and television and radio advertisements – all showing use by applicant of the designation
KNOW YOUR SCORE and asserted derivations thereof; internet materials, including excerpts
of articles from newspapers, magazines and websites showing use by third-parties of the term
KNOW YOUR SCORE and derivations thereof; copies of cease and desist letters, with
responses where applicable, between applicant and opposer as well as third parties; copies of
applicant’s prior registration No. 2422711 taken from the Trademark Electronic Search System
(TESS) database of the USPTO and the underlying application file, and copies of the file
wrapper of the underlying application and assignment records concerning Registration No.
2422711.
Applicant, during its testimony period properly made of record a notice of reliance on:
applicant’s and opposer’s responses to interrogatories; copies of applicant’s online advertising of
the designation KNOW YOUR SCORE, including banner ads; copies of applicant’s radio and
television ads featuring KNOW YOUR SCORE; photographs of applicant’s advertisements for
the designation KNOW YOUR SCORE in sports venues and in Times Square; copies of cease
and desist letters sent by applicant to third parties relating to the designation KNOW YOUR
SCORE; copies of a business plan and a creative brief regarding use by applicant of KNOW
YOUR SCORE; photographs showing promotional merchandise bearing the designation KNOW
YOUR SCORE; copies of web pages from applicant’s website showing use of KNOW YOUR
SCORE; copies of articles from various Internet sources discussing the topic of consumer credit
and credit scores “without the need to use the phrase and Applicant’s mark, ‘Know Your Score’;
and copies of official records including a copy a claimed Registration No. 2422711 for the mark
Opposition 91178303

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KNOW YOUR SCORE and the file wrapper and assignment agreement therefor, and a copy of
Registration No. 3339410, for the mark KNOW YOUR SCORE, owned by June Bug
Enterprises, Inc. and a copy of the file wrapper therefor.8
Both opposer and applicant filed briefs on the case, and opposer filed a reply brief. An
oral hearing was held on September 19, 2012.
Standing
To establish standing opposer must show “a real interest” in the proceeding. See Richie
v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999). Generally, where a claim
of mere descriptiveness is asserted, it is sufficient for the plaintiff to establish that it is a
competitor. Plyboo America, Inc. v. Smith & Fong Co., 51 USPQ2d 1633 (TTAB 1999); No
Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ 502 (TTAB 1985). Opposer,
in the notice of opposition, alleged:
1. Opposer is a leading provider of decision management solutions
powered by advanced analytics. Among other activities, Opposer
develops and distributes computer software and other analytical
tools and provides consulting services and information in the field
of credit and credit scoring throughout the United States and
elsewhere.
Although applicant did not admit to all of the allegations contained in the paragraph,
applicant did admit that opposer “provides consulting services and information in the field of
credit and credit scoring.” (Answer ¶ 1) In view of the admission, we find that opposer has
established that it is a competitor of applicant in the financial information industry and, therefore,
has demonstrated its standing to oppose the registration of the involved application.
Mere Descriptiveness

8 The evidence relied upon is partially duplicated by the parties. We note that the duplication was
unnecessary. To the extent that either party has properly introduced evidence, it is of record for use by
both parties for any use permitted by the Federal Rules of Evidence. 37 CFR § 2.120(j); TBMP §704.09.
Opposition 91178303

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Opposer contends that when the phrase “know your score” is properly analyzed in
relation to the services for which registration is sought, the context in which it is being used, and
the significance the term would have to the average purchaser, it can only be deemed descriptive
of Applicant’s credit reporting … services.”9 Opp. reply br. p. 9. Opposer specifically argues
that the phrase “immediately describes the purpose and important characteristic and function of
Applicant’s [credit reporting and provision of information in the financial and credit fields]
services, - enabling a consumer to know his or her credit score.” Id. at 13. In support of its
claims, opposer has made of record: dictionary definitions of each word in the designation
KNOW YOUR SCORE; purported descriptive use of the term KNOW YOUR SCORE and
wording derived therefrom by applicant, and third party use of the phrase “know your score”
either alone or with other wording, including use by competitors. 10
With regard to the definitions, opposer acknowledges that the wording “know your
score” is “unlikely to appear in a dictionary as a single entry,”11 and has submitted definitions of
each word in the mark taken from Merriam-Webster’s Online Dictionary (www.-merriam-
webster.com/dictionary).12 According to these definitions, the word “know” is a verb meaning

9 Opposer also argues that applicant’s slogan “know your score” is merely informative advertising,
conveying one significant meaning to average consumers that “they need to know what their credit scores
is and what effects [sic] their credit score.” In making this argument, opposer relies on a number of cases
where the issue involved whether or not an applied-for designation functioned as a mark. We make clear
that the only issue before us is whether or not the designation KNOW YOUR SCORE is merely
descriptive of applicant’s services. Whether subject matter functions as a mark is a separate issue from
whether the subject matter is merely descriptive of the services.
10 In articulating its position, opposer maintains that the mere descriptiveness of the mark is demonstrated
under the dictionary test, the imagination test, the competitive use test, by extensive third-party use of the
phrase “know your score,” and under the competitive need test. (Opp br. pp. 18-24). However, as the
Board has reiterated, “the [only] test for descriptiveness is whether a term immediately conveys
knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.’
In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (internal citations omitted).
11 Opp. br. p. 18.
12 Opp. NOR exh. S.
Opposition 91178303

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“cognizant or aware” of a fact or information. The word “your” means “of or relating to
oneself.” The word “score,” in pertinent meaning, means “a mark used for keeping account,” “a
number that expresses accomplishment (as in a game or test) or excellence (as in quality) either
absolutely in points gained or by comparison to a standard.”
With particular regard to the meaning of the word “score,” opposer contends that a credit
score is a means of keeping account of an individual’s credit worthiness. Opposer further
contends that the word “score,” as used in the phrase “know your score” in the context of
applicant’s services, is a short form of the term “credit score” and is interchangeable with the
term “credit score” in the financial industry. Opposer points to applicant’s use of the terms
“score” and “credit score,” interchangeably on its website.
We also take note of the following additional examples in the record interchangeability of
the terms “score” and “credit score.” For example, the following ad appears on applicant’s
website.

(http.//www.freecreditreport.com);
Opposition 91178303

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In addition, several articles taken from the LexisNexis® database, and submitted by
applicant, show that the media commonly use the term “score” interchangeably with the term
“credit score.” Examples include:
Economy Hurting Consumer Credit Scores by Patricia Sabatini.
As the housing market collapsed, jobs disappeared and the
economy crumbled, American’ credit scores also took a hit.
Credit scores are used by lenders, insurers and others to judge
how risky it is to do business with people. Generally, the higher
the score, the lower the rate will be for a mortgage, insurance
coverage, credit card and other forms of credit. Scores also may be
used by companies to evaluate employment or rental applications.
(Pittsburgh Post-Gazette (Pennsylvania), November 30, 2010);

California’s Credit Score Ties For Best in Nation: Consumer debt
reduction, scarcer credit help boost marks for most states by Dean
Calbreath.
California tied with Massachusetts and New Jersey last month
for having the highest credit score in the nation, says a report
released by CreditKarma, a San Francisco firm that monitors
consumer credit.
***
The worst scores were in the South. Alabama, Kentucky,
Louisiana, Mississippi, Oklahoma, South Carolina and Tennessee
all had scores below 650. Arkansas was the worst, with an average
score of 636. In general, scores below 620 are considered poor;
620-700 is considered average; 700-760 good; and 760-850
excellent.
(The San Diego Union Tribune, November 13, 2010);

Why Time Changes Consumers’ Credit Scores by Lew Sichelman.
***
A credit score is a three-digit number that is considered an
accurate predictor of whether or not borrowers will repay.
But borrowers’ scores are based on the information contained in
their credit record. And because what’s in their file is so fluid, so
is their score.
(Bank Investment Consultant, November 2010);

UDALL: NEW CONSUMER PROTECTION LEADER SHOULD
MAKE FREE ACCESS TO CREDIT SCORE A PRIORITY
***
Senator Udall is a long-time advocate for pro-consumer
measures that help people take greater control of their fiscal health.
Opposition 91178303

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Legislation he authored and included in the Wall Street
Accountability bill, which became law this summer, requires credit
card companies and others to provide consumers with a free copy
of their score if they are turned down for credit or receive a less-
favorable interest rate.
(State News Service, October 5, 2010); and

Millions of consumers’ credit scores drop; KEEPING COUNT by
Suzanne Ziegler, Minneapolis Star Tribune.
Americans’ credit scores, the three-digit number that determines
whether you’ll get a loan and how much you’ll pay for it, have
taken a beating.
Millions of consumers’ scores have dropped, making it more
expensive for them to borrow money – or even impossible if the
score has sunk low enough.
(The Myrtle Beach Sun-News, June 27, 2009).13

Opposer also points to assertedly descriptive uses of KNOW YOUR SCORE and
derivatives thereof by applicant. We note, however, that the record reflects that applicant uses
the designation KNOW YOUR SCORE in a trademark manner, i.e., set apart from any text, in
larger font and clearly delineated with the SM symbol. That said, the record does show use by
applicant of slight variations of the term in a descriptive manner. For example, in its radio and
television ads, applicant uses the phrase “David Gillialan knows his score. Do you?” Opp. NOR
exh. I. And, on one of its webpages, as shown below, applicant uses the phrase “KNOW YOUR
CREDIT SCORE! to describe its service. App NOR exh. 7.

13 Applicant’s NOR, Trial exh. 21.
Opposition 91178303

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Last, opposer also has made of record evidence showing use of the phrase
“know your score” by the government, competitors, other companies, consumer advocacy
groups, consumers and news agencies which show descriptive use of the phrase when used in
connection with credit scores and the credit reporting industry. Examples include the following
(emphasis added):
An article titled SURVIVING THE NEW ECONOMY Know
your score Lenders have raised the bar, but good rates are
still available by Steve Hart.
The article discusses the importance of credit scores and, in the tips
portion of the article, Mr. Hart suggested obtaining free annual
credit reports.
(http://www.pressdemocrat.com/article/20081026/BUSINESS/810
2660304?Title+Know-your-score);

An article from The Washington Post titled It Pays to Know Your
Score by Annys Shin, Ylan Q. Mui and Nancy Trejos.
The article discusses the importance of credit scores, and advises
one to regularly check your credit reports to make sure they are
free from errors and to “make sure you figure out what your score
is.”
Opposition 91178303

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(http://voices.washingtonpost.com/thecheckout/2008/07/it_pays_to
_know_your_score.html);

Screenshots and a transcript of a news report originally aired on
CBS News titled Know Your Score. The report discusses tips for
improving your credit score and advises one to pull their credit
report and review it for mistakes.
(http://www.cbsnews.com/stories/2008/03/23/business/main39608
88.shtml);

An online brochure sponsored by The Consumer Federation of
America and Freddie Mac14 titled KNOW YOUR SCORE. The
brochure defines and discusses credit scores stating that
“THERE’S ANOTHER SCORE THAT’S IMPORTANT AS YOU
GO THROUGH LIFE. IT’S CALLED A CREDIT SCORE. AND
WHETHER YOU KNOW IT OR NOT, SOMEONE IS
ALREADY KEEPING TRACK. The brochure also encourages
one to obtain and copy of one’s credit report.
(http://www.consumerfed.org/pdfs/knowyourscore.pdf);

A printout of an article from the Credit Fairy titled Take Charge of
Your Credit Report: Know Your Score. The article discusses ones
credit score and explains that it “is determined by a complex
mathematical formula that synthesizes all the information
contained in your credit report and calculates it into one-number –
usually between 300-850. The higher your number – or score – the
less investment risk you pose in the eyes of lenders or creditors.”
(http://www.creditfairy.org/credit-scores/index.php);

A printout from the California Department of Consumer Affairs
titled Know Your Score. The article explains what is a credit score
and indicates where one can obtain a copy of the credit report and/
or report errors.
(http://www.dca.ca.gov/publications/knowyourscore.shtml);

A printout of an article from The Brownsville Herald titled Need
Credit? Know your Score by Sean Gaffney. The article discusses
the credit score which is computed by three different sources and
quotes Don Mayer, a certified financial planner with Edward

14 We note that the brochure was available on the internet on August 11, 2010, almost six years after
Freddie Mac indicated in an email dated September 27, 2006, in response to a cease and desist letter from
applicant, that it would cease use of the phrase KNOW YOUR SCORE on its website. Opp. NOR exh. L;
App NOR exh. 10. Notably, the brochure was accessed via the website of The Consumer Federation of
America, who also received a cease and desist letter from applicant in 2006, although there is no
indication of a response in the record. Opp. NOR exh. M; App. NOR exh. 10.
Opposition 91178303

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Jones, who states that “‘[a] lot of people out there don’t understand
the score and they need to learn.”
(http://www.brownsvilleherald.com/common/printer/view.php?db
=brownsville&is=103246);

A print of a news release by the Northern Maine Development
Commission titled Know Your Score: Credit Management and
Repair. The news release announces a seminar that will discuss,
among other things, how to access and understand your credit
report.
(http://www.nmdc.or/Event/credit_workshop.pdf);

A copy of a brochure from the Nebraska Attorney General’s Office
titled Manage Your Credit and containing a sub-section titled
Know Your Score. The brochure discusses how your credit score
is calculated, the information available in a credit report and how
to correct an error.
(http://www.ago.ne.gov/media/Managing_your_credit.pdf);

An article from ABC News titled Know Your Score Tips of
Getting and Understanding Your Credit Rating. The article
discusses “your FICO or credit score, specifically noting that [t]he score
is the sole piece of information three-quarters of all financial institutions
use to decide your financial future.
(http://abcnews.go.com/print?id=87829);

A notice from University Federal Credit Union sub-titled Know
Your Score imparting details on how to obtain a copy of your
credit report containing your credit score.
(https://www.ufcu.org/learning/credit/scores/know.php);

A notice form CarBuyingHelpOnline.com advises one to “[k]now
your credit score before you start any other aspect of looking for a
car.”
(http://www.carbuyinghelponline.com/creditreport/creditreport.ht
m);

An article from LeaseGuide.com titled Credit Score – Know Your
Score and Understand It, discussing, among other things, what is a
credit score and poor credit scores that result from errors or
outdated information about you in your credit history.
(http://www.leaseguide.com/articles/creditscore.htm);

An article in SHARE newsletter titled Know Your Score! by
Bobbie Lison (Green Bay Catholic Charities Budget Counseling).
The article states that “[e]verybody knows that credit reports are
Opposition 91178303

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the report cards for how well you’ve handled your finances.” It
also identifies the three credit bureaus and explains what
information they use to calculate your credit score.
(http://www.sharewi.org/spotlight
/2008/September/KnowYourScore.html);

A blog post by Lesley Scorgie titled Know Your Score discussing
proactively managing your credit score.
(http://lesleyscorgie.com/blog/2009/02/know-your-score); and

An article from debt help and advice entitled Know Your Score
discussing credit scores and credit reporting.
(http://debt-
help.ath.cx/search/%22know%20your%20score%22).15

In response, applicant, citing insufficient evidence, contends that opposer did not meet its
burden to show that applicant’s applied-for mark KNOW YOUR SCORE is merely descriptive
of its identified services. Applicant also contends that its applied-for mark is not merely
descriptive of the identified services, but rather is “inherently distinctive as shown by its

15 Opp. NOR exhs. M, T and W.
Opposer additionally made of record information regarding a series of articles which do not show the
phrase KNOW YOUR SCORE or similar wording. Although some of these materials provide useful
background information concerning credit scores, they do not demonstrate that the wording KNOW
YOUR SCORE at issue herein is understood by consumers to merely describe applicant’s services, and
are therefore of limited probative value. This evidence includes, for example, the following articles:
What is a Good Credit Score, http://www.doughroller.net/credit/what-is-a-good-credit-score/; How Do I
Know if My Credit Is Good? by Mark Lima,, http://www.creditscore.net/how-do-i-know-if-my-credit-is-
good/#; Free Credit Score and Triple Credit Scores, http://www.gofreecredit.com; Check your credit
without hurting your score, http://www.mensnow.com/check-your-credit-without-hurting-your-score/; 7
Ways to Improve Your Credit Score by Joelle Steffan, http://creditsesame.com/blog/7-ways-to-improve-
your-score/, How to Increase Your Credit Score, http://everythingfinanceblog.com/2011/01/how-to-
increase-your-credit-score.html; What’s In a Credit Score?by Christina Couch,
https://getcurrency.com/article/what-s-in-a-credit-score; and Unearthing the black magic behind your
credit score, by J.D. Colbert, http://64.38.12.138/News/2011/000085.asp.
We further find the results list for a search of the phrase “know your score” on the Google search
engine has limited probative value because many of the entries either do not contain sufficient context or
discuss goods and services unrelated to the services at issue in this case. However, the actual web pages,
where submitted, have probative value in our descriptiveness analysis.
We also did not consider the Facebook page, identified as FIC000158, because it contains no
identifying information.
Opposition 91178303

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suggestive nature, based on its multiple meanings and the need to use thought and imagination in
a multi-step process to understand a connection between the mark and Applicant’s services.
Further, applicant contends that the inherent distinctiveness of the mark was confirmed by the
determination of two PTO examiners.” App. br. p. 18. Last, applicant contends that its mark
will not foreclose competitors from descriptive use of a necessary phrase. In support of its
position, applicant made of record copies of sixty-three magazine, journal and other news outlet
articles retrieved from a search of the LexisNexis data, and websites showing that third-parties
use a variety of different phrases in discussing credit scores, credit report services and related
financial topics. Applicant also submitted a copy of the third-party registration, No. 3339440,
for the mark KNOW YOUR SCORE (Principal Register) for “Health information services,
namely, providing information on prostate cancer, hypertension, heart disease and other men’s
health issues; medical evaluation services, namely, conducting patient screening programs for
the detection, treatment and management of prostate cancer, hypertension, heart disease and
other diseases affecting men’s health” and its file wrapper.
Applicant also argues, in the alternative, that its mark has acquired distinctiveness, as
more fully discussed infra.
Applicable Law
A term is deemed to be merely descriptive of the services within the meaning of
Trademark Act Section 2(e)(1), if it forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use of the services. See, e.g., In re Gyulay,
820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215 (CCPA 1978). A term need not immediately convey an idea of each and every
specific feature of the applicant’s or registrant’s goods or services in order to be considered
Opposition 91178303

16

merely descriptive; it is enough that the term describes one significant attribute, function or
property of the goods or services. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is merely descriptive is
determined not in the abstract, but in relation to the goods or services for which registration is
sought, the context in which it is being used in connection with those goods or services, and the
possible significance that the term would have to the average purchaser of the services because
of the manner of its use; that a term may have other meanings in different contexts is not
controlling. In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). It is settled that “the
question is not whether someone presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who knows what the goods or services are
will understand the mark to convey information about them.” In re Tower Tech Inc., 64
USPQ2d 1314, 1316-17 (TTAB 2002).
In the case before us, the mark in issue is in the nature of a slogan. A slogan, phrase or
any other combination of words may act as a trademark so long as the slogan or combination is
used in such a way as to identify and distinguish the user’s goods or services from those of
others. However, a slogan or phrase may be merely descriptive and, thus, unregistrable on the
Principal Register in the absence of acquired distinctiveness, if it directly refers to a
characteristic of the goods or services with which it is used. The mere descriptiveness analysis is
the same for a slogan as it is with any other proposed mark. See In re Standard Oil Co., 275
F.2d 945, 125 USPQ 227 (CCPA 1960). See generally J.T. McCarthy, McCarthy on Trademarks
and Unfair Competition, §7:22 (4th ed. updated 2013).
Slogans may be descriptive where they are self-laudatory or commonly used in the
relevant industry. Where a slogan is not “unique or catchy” but rather informs the purchasing
Opposition 91178303

17

public about an aspect of the services, it is considered descriptive. As the Board stated in In re
Melville Corp., 228 USPQ 970, 971-972 (TTAB 1986) (BRAND NAMES FOR LESS highly
descriptive of retail clothing story store):
In an environment where consumers are accustomed to the use by
merchants of similar informational phrases, we believe that
consumers are not likely to view applicant’s slogan as a service but
rather as a merchandising slogan using common ordinary words
merely to convey information about applicant’s services. … Such a
highly descriptive and informative slogan should remain available
for other persons or firms to use to describe the nature of their
competitive services.
Findings of Fact
Based on the record we find the following facts. The words “score” and “credit score”
are used interchangeably in the credit reporting and financial information industries. The phrase
“know your score” has been and continues to be routinely used by those in the credit and
financial sectors, government, consumer advocacy groups, and media to describe a consumer’s
need to know what their credit score is, its effect and how to obtain it.
Decision
Based on these findings, we hold that the designation KNOW YOUR SCORE
immediately, and without mental gymnastics, informs consumers of the purpose and function of
applicant’s credit reporting services and provision of information services in the financial and
credit fields, namely that they enable a consumer to know his or her credit score or, as applicant
puts it, it allows relevant consumers to “know your score.”
We find applicant’s arguments to the contrary unpersuasive. First, applicant contends
that it plays on the multiple meanings of “score” in the mark by widely promoting the mark and
services it identifies at sports stadiums and in other sports contests such that this promotional
theme creates a double entendre and challenges the consumer use a mental process to
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“extrapolate a connection” between the mark and the services. App. br. p 18. We thus consider
whether KNOW YOUR SCORE has a second meaning that evokes a double meaning such that
purchasers will readily appreciate that the mark is a double entendre.
“Double entendre” is defined as “ambiguity of meaning arising from language that lends
itself to more than one interpretation.” Webster’s Third New International Dictionary (1993) at
p. 678. As stated in TMEP § 1213.05(c) (emphasis supplied), “[a] ‘double entendre’ is a word or
expression capable of more than one interpretation. For trademark purposes, a ‘double entendre’
is an expression that has a double connotation or significance as applied to the goods or services.
The multiple interpretations that make an expression a ‘double entendre’ must be associations
that the public would make fairly readily, and must be readily apparent from the mark itself.”
A mark thus is deemed to be a double entendre only if both meanings are readily apparent from
the mark itself. If the alleged second meaning of the mark is apparent to purchasers only after
they view the mark in the context of advertising materials or other matter separate from the mark
itself, then the mark is not a double entendre. See In re The Place, Inc., 76 USPQ2d 1467, 1470
(TTAB 2005) (THE GREATEST BAR held laudatory and merely descriptive of restaurant and
bar services; the Board stating that “[i]f the alleged second meaning of the mark is apparent to
purchasers only after they view the mark in the context of the applicant’s trade dress, advertising
materials or other matter, then the mark is not a double entendre”); and In re Wells Fargo & Co.,
231 USPQ 95 (TTAB 1986) (EXPRESSERVICE held merely descriptive for banking services,
despite applicant’s argument that the term also connotes the Pony Express, the Board finding
that, in the relevant context, the public would not make that association).
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Here, although applicant may have intended that its mark convey a dual sports-themed
meaning, the record simply does not establish that consumers of applicant’s services would,
upon seeing the mark itself, recognize this sports meaning.
Similarly, the single third-party registration for the mark KNOW YOUR SCORE for
vastly different health care services does not evidence applicant’s contention that KNOW YOUR
SCORE will be understood to have multiple meanings. That a term may have other meanings in
other contexts is simply not controlling. Bright-Crest, Ltd, supra.
We also find unavailing applicant’s contention that highly similar derivations of “know
your score,” e.g., “know the score” have no value in our mere descriptiveness analysis. We find
so because this is contradictory to the position applicant takes with regard to policing its mark.
Particularly, although applicant asserts on the one hand that the use of derivative phrases should
not be considered in assessing mere descriptiveness, it relies, on the other hand, on evidence,
discussed infra, showing it threatened competitors for use of even broader derivatives as proof of
its enforcement of the applied-for mark. Specifically, in its cease and desist letters to opposer
and Union Privilege, applicant challenged their respective use of the phrases “Know Your Fico
Scores” and “We Want You To Know the Score “or Know the Score” for “credit-report related
services or products.” Opp. NOR exh. L; App. NOR exh. 10. Applicant simply cannot have it
both ways and we find that a minor alteration to the phrase, such as the inclusion of a “the”
instead of the term “your” does not significantly alter the overall impression of the third-party
designations.
Applicant, also urges us not to consider its “Creative Briefs,” which were filed under
Seal. While we cannot discuss the specifics of applicant’s argument, it is not persuasive. While
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we recognize that the documents are solely for internal use, they nonetheless contribute to and
confirm our understanding of applicant’s intended meaning of its applied-for mark.
Last, we do not find applicant’s applied-for mark inherently distinctive merely because
two different examining attorneys approved the application for registration. It is settled that the
Board is not bound by the decisions of examining attorneys. See Cineplex Odeon Corp. v. Fred
Wehrenberg Circuit of Theatres Inc., 56 USPQ2d 1538 (TTAB 2000).
In short, opposer has established that the designation KNOW YOUR SCORE when used
in connection with “credit reporting services; credit information provided by electronic means,
and providing information in the financial and credit fields” is merely descriptive.
Acquired Distinctiveness
Having found that applicant's mark is merely descriptive, we now address applicant’s
alternative claim that the proposed mark has acquired distinctiveness. Applicant particularly
asserts that, even if its applied-for mark is not found inherently distinctive, the mark has acquired
distinctiveness through an extensive advertising program and expenditures resulting in
widespread consumer exposure to the mark as well as through substantially exclusive and
continuous use for more than five years. Applicant also asserts acquired distinctiveness based on
its ownership of Registration No. 2422711 for the mark KNOW YOUR SCORE for “providing
credit report information to perspective first mortgagers.”
Applicant has the burden to establish, by a preponderance of the evidence, a prima facie
case that the wording “know your score” has become distinctive. See Yamaha International
Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d 1001 (Fed. Cir. 1988). The greater
the degree of descriptiveness, the greater the evidentiary burden on the user to establish acquired
distinctiveness. See Yamaha Int'l Corp., supra. Highly descriptive terms, for example, are less
Opposition 91178303

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likely to be perceived as trademarks and more likely to be useful to competitors than are less
descriptive terms. More substantial evidence of secondary meaning thus will ordinarily be
required to establish their distinctiveness.
Evidence of acquired distinctiveness can include the length of use of the mark,
advertising expenditures, sales, survey evidence, and affidavits asserting source-indicating
recognition. See In re Bograin International Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir.
1990). With regard to the sales and adverting expenditures, while gross sales and advertising
figures may be indicative of applicant’s success, they are not necessarily sufficient to prove
acquired distinctiveness. In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir,
1999) (claim based on annual sales under the mark of approximately eighty-five million dollars,
and annual advertising expenditures in excess of ten million dollars, not sufficient to establish
acquired distinctiveness in view of highly descriptive nature of the mark). This is particularly so
here where the evidence indicates that although applicant spends millions of dollars each year on
broadcast TV and radio commercials, and places its advertisements in high-traffic areas such as
Time Square, sports stadiums and on its website, the advertising either solely features or
additionally features applicant’s mark FreeCreditReport.com. As applicant notes in its brief,
“[a]pplicant’s FreeCreditReport.com website uses applicant’s KNOW YOUR SCORE trademark
as a slogan, followed by SM, placed prominently under the FreeCreditReport.com® mark.” (App.
Br. p. 24). As such, it is unclear from this evidence whether the relevant consumers view
KNOW YOUR SCORE as a distinctive source indicator for applicant’s services. Applicant has
not compared the quantity and quality of its advertising to that of other entities that provide
similar services; that is, we find no information in the record to put those figures into context,
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i.e., whether applicant’s share of the market is in fact significant and how its marketing
expenditures compare to those in the industry generally.
Further, applicant has not provided evidence of unsolicited third-party use of its mark,
such as ads, magazine or news articles that reference applicant’s mark as an indicator of source
for applicant’s services.
Applicant also has noted in confidence, so we will not disclose specifics, a substantial
number of unique visitors to its website, which it asserts is ranked highly in a list of the most
visited sites online, App. Supp. Resp. to Opp. Interrogatories pp. 13-14, 16 and applicant further
claims that it retains a “position as a leader in the credit report information industry.” (App. br.
p. 24). Again, applicant’s claims are without context and corroboration.
For these reasons, we cannot ascertain the impact applicant’s KNOW YOUR SCORE
slogan has made on the consuming public as a result of public exposure and, thus, whether it has
acquired distinctiveness as an indicator of source of applicant’s identified services.
With respect to applicant’s claim of use of the mark for at least five years, we note that
the Trademark Act provides that the USPTO may accept such use as prima facie evidence of
distinctiveness. However, such use must be “substantially exclusive and continuous.”
Trademark Act § 2(f). In that regard, it has been held that:
In respect of registration, there must be a trademark, i.e., purchasers in the
marketplace must be able to recognize that a term or device has or has acquired
such distinctiveness that it may be relied on as indicating one source of quality
control and thus one quality standard. When the record shows that purchasers
are confronted with more than one (let alone numerous) independent users of a
term or device, an application for registration under Section 2(f) cannot be
successful, for distinctiveness on which purchasers may rely is lacking in such
circumstances.

16 Applicant NOR exh. 3.
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Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984);
see also Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1682 (TTAB 2007).
The evidence of record shows that numerous third parties have used the same or similar
wording in relation to similar or related services. The evidence also reveals that applicant, on at
least five occasions, sent cease and desist correspondence to various organizations, including
opposer, asserting that these organizations were using the same or a very similar mark to its
applied-for KNOW YOUR SCORE mark in connection with credit information services that
directly compete with applicant. While demonstrating applicant’s efforts to police its mark, this
correspondence also shows that these third parties were using the mark at least some of the time
during which applicant claims exclusive use, further diminishing any possibility that a significant
number of consumers may have formed the connection between the mark and the applicant as a
source of the named services necessary to establish distinctiveness. Indeed, the record shows
that only two of the organizations agreed to discontinue use and, one of which failed to do so.
App. NOR exh. 10.
Additionally, the record shows that a significant number of third parties use the wording
KNOW YOUR SCORE, or wording very similar thereto, to communicate the usefulness of
knowing one’s credit score and the connection between credit scores and credit reporting. In
fact, applicant has acknowledged that it is “aware of third party uses of the phrase ‘know your
score’ or which include the words ‘know’ and ‘score’ or derivatives of ‘know’ and ‘score’.”
Applicant's responses to opposer's second set of interrogatories at p. 3.17 Although absolute
exclusivity is not required, see L.D. Kitchler Co. v Davoli, Inc. 192 F3d 1349, 52 USPQ2d 1307
(Fed. Cir. 1999), the numerous third-party uses clearly show that others are using the wording

17 Opp. NOR exh. C.
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“KNOW YOUR SCORE” to describe substantially similar credit information services. Because
applicant’s use is not “substantially exclusive,” applicant may not rely on its asserted five years’
use to show that the wording in the applied-for mark has acquired distinctiveness.
Finally, we consider applicant’s claim of acquired distinctiveness based on its
ownership of Registration No. 2422711 (issued January 23, 2001) for the mark KNOW YOUR
SCORE for “providing credit report information to perspective first mortgagors” in Class 36.
This mark is registered on the Principal Register in standard character format. Applicant
argues that the mark in this registration is the same as the mark herein, and that the services in
the registration are closely related to those in the application.
At the outset, we note that Section 7(b) of the Trademark Act provides that a
registration on the Principal Register “shall be prima facie evidence of the validity of the
registration, registrant’s ownership of the mark and of registrant’s exclusive right to use the
mark in commerce in connection with the goods or services specified in the certificate.” See
also In re Electro Products Laboratories, Inc., 156 USPQ 54 (TTAB 1967). Thus, Section
7(b) creates the basis for permitting reliance on an existing registration, under certain
circumstances, to support a claim that distinctiveness has been transferred to a mark which is
essentially the same as the registered mark for essentially the same goods or services.
However, in this case, the services in the application are different from those recited in
the registration, and they are also broader in scope. While the services in the application are
identified as “providing credit report information to perspective [sic] first mortgagors,” the
services in the application are identified broadly as “credit reporting services; credit
information provided by electronic means,” and “providing information in the financial and
credit fields,” which would include additional and different credit report information.
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Ownership of an existing registration does not give applicant the right to register the same
mark for different or broader services, even if they are closely related to the services in the
registration. See In re Best Software, 63 USPQ2d 1109, 1113 (TTAB 2002). See also In re
Loew’s Theatres Inc., 769 F.2d 764, 768, 226 USPQ 865, 869 (Fed. Cir. 1985) (“Nothing in
the statute provides a right ipso facto to register a mark for additional goods when items are
added to a company’s line or substituted for other goods covered by a registration); In re
Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir.
1987) (incontestable registration for specific services involving credit cards does not
automatically entitle applicant to a registration for broader financial services). It is established
that the Board must decide each case on its own facts and record. In re Netts Design Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re International Taste Inc., 53
USPQ2d 1604, 1606 (TTAB 2000).
We therefore find that the prior registration also does not serve as a basis for applicant’s
claim of acquired distinctiveness.
In sum, the record simply does not support a finding that the wording “know your
score” has acquired distinctiveness as an indicator of source of applicant’s credit reporting and
information services. Accordingly, we find that the mark has not acquired distinctiveness in
connection with the identified services.
Decision: Opposer’s opposition to the registration of the mark in application Serial No.
79855572 on the ground that the mark is merely descriptive of the identified services, and has
not acquired distinctiveness, is sustained.