Oakwon Demo-graphics LLCv.Mission Escape Rooms, LLC

Trademark Trial and Appeal Board

Jan 11, 2019

No. 91227852 (T.T.A.B. Jan. 11, 2019)

This Opinion is not a
Precedent of the TTAB

Hearing: January 8, 2019 Mailed: January 11, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Oakwon Demographics LLC
v.
Mission Escape Rooms, LLC
_____

Opposition No. 91227852
_____

Michael F. Sarney of Moritt Hock & Hamroff LLP,
for Oakwon Demographics LLC.
Dominic J. Souza of Souza LLC,
for Mission Escape Rooms, LLC.
_____

Before Kuhlke, Bergsman and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Mission Escape Rooms, LLC (Applicant) filed applications on the Principal
Register to register MISSION ESCAPE (in standard characters) and MISSION
ESCAPE ROOMS (in standard characters) both for “conducting live entertainment
in the nature of games featuring room escape, puzzles, and team strategy,” in Class
41.1 In the MISSION ESCAPE application, Applicant disclaimed the exclusive right

1 Application Serial No. 86815642 (MISSION ESCAPE), filed November 10, 2015, and
Application Serial No. 86815955 (MISSION ESCAPE ROOMS), filed November 11, 2015,
Opposition No. 91227852
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to use the word “Escape,” and in the MISSION ESCAPE ROOMS application,
Applicant disclaimed the exclusive right to use the term “Escape Rooms.”
Oakwon Demographics LLC (Opposer) opposes registration of Applicant’s marks
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles Opposer’s previously used marks MISSION and
MISSION ESCAPE GAMES in connection with “arranging and conducting
entertainment through interactive, puzzle adventure games and challenges, namely,
featuring room escape, problem solving, teamwork and strategy and social
entertainment events,” as to be likely to cause confusion.2
Applicant, in its Answer, denied the salient allegations in the Notices of
Opposition.3 Applicant also pleaded affirmative defenses, which it did not pursue at
trial or discuss in its brief. Accordingly, Applicant’s affirmative defenses are deemed
waived. See Alcatraz Media Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750,
1753 n.6 (TTAB 2013), aff’d per curiam, 565 F. App’x 900 (Fed. Cir. 2014).
On March 27, 2017, Opposer filed a motion for summary judgment on its
likelihood of confusion claim. In our August 3, 2017 order, the Board granted partial
summary judgment in favor of Opposer on Opposer’s standing and on priority for the
mark MISSION ESCAPE GAMES. The Board found that there were genuine

both under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s
claimed bona fide intent to use the marks in commerce.
2 Notices of Opposition ¶¶ 1, 8 (1 TTABVUE 4, 6, 9-11). Opposer filed separate Notices of
Opposition for each application, which the Board staff consolidated when we instituted the
proceeding.
3 4 TTABVUE.
Opposition No. 91227852
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disputes of material fact with respect to Opposer’s priority for its MISSION mark and
on the likelihood of confusion claim.4
I. Evidentiary Issue
Opposer has locations in Anaheim, California, West Hartford, Connecticut,
Manhattan, New York, Flushing, New York and Philadelphia, Pennsylvania.5
Applicant has escape room game venues in Annapolis and Waugh Chapel, Maryland.6
David Chen, Opposer’s Managing Member, testified that Opposer has received
inquiries from potential customers demonstrating actual confusion.7 “Sometime in
2016,” Opposer received an inquiry from a potential customer asking if Opposer
would honor a promotional discount for tickets offered at its Annapolis location at its
Manhattan location and, “[i]n late 2017,” Opposer received an inquiry from a
potential customer who won free tickets to Opposer’s West Hartford, Connecticut
venue as to whether the tickets could be redeemed at Opposer’s Maryland location.8
Applicant objects to the Chen testimony as to the instances of actual confusion on
the ground that Opposer failed to disclose these purported instances of confusion in
response to Applicant’s interrogatory No. 26 and that Opposer failed to supplement
its response.9

4 15 TTABVUE 17-18.
5 Chen Testimony Decl. ¶¶7-11 (26 TTABVUE 4-5).
6 Cherry Testimony Decl. ¶2 (34 TTABVUE 2).
7 Chen Testimony Decl. ¶16 (26 TTABVUE 6).
8 Chen Testimony Decl. ¶¶17-18 (26 TTABVUE 6-7).
9 Applicant’s Brief, p. 35 (39 TTABVUE 36).
Opposition No. 91227852
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Interrogatory No. 26
Identify and describe any and all instances in which you
have ever received mail, deliveries, telephone calls, bills,
payments, invoices or other materials referring to or
inquiring about Applicant, Applicant’s marks, or any goods
or services offered, sold or provided by Applicant.
Answer
Opposer objects to this Interrogatory on the grounds that
it exceeds the number of interrogatories permitted under
Rule 33.
Notwithstanding the foregoing objection, Opposer received
a misdirected e-mail inquiry from a publication in
Maryland inquiring about Opposer’s purported opening of
an escape game business in Annapolis, Maryland under the
name MISSION ESCAPE.10
Opposer argues that Applicant is not prejudiced by its failure to supplement its
interrogatory response because Applicant had the opportunity to cross-examine
David Chen but elected not to.11
Fed. R. Civ. P. 26(e) provides that a party has a duty to supplement an
interrogatory response if it learns that the response is incomplete or incorrect and
the additional or corrective information has not otherwise been made known to the
other party. Since Opposer’s testimony period was reset to open January 2018,12 and
Opposer learned about the two purported instances of actual confusion in 2016 and
late 2017, Opposer had time to supplement the response to the relevant interrogatory.
Opposer offered no explanation as to why it did not supplement the interrogatory

10 32 TTABVUE 13-14.
11 Opposer’s Reply Brief, p. 17 (40 TTABVUE 24).
12 20 TTABVUE 4.
Opposition No. 91227852
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response and, therefore, there is no basis to conclude that Opposer’s failure to disclose
those instances of actual confusion was justified.
Instances of actual confusion are persuasive proof that confusion is likely, and
Opposer’s first disclosure of those instances during the Chen testimony declaration
is unfair surprise to Applicant. Opposer should have been cognizant of the importance
of the testimony regarding actual confusion and should have taken every step to
ensure its admissibility. To allow David Chen to testify about instances of actual
confusion that Opposer withheld from Applicant would excuse Opposer’s failure to
supplement discovery and reward its correspondingly late disclosure of that
information. Opposer’s failure to supplement its interrogatory responses was neither
harmless nor justified. See Spier Wines (PTY) Ltd. v. Shepher, 105 USPQ2d 1239,
1246 (TTAB 2012) (opposer’s failure to identify a potential witness as a person
knowledgeable about the issues involved in the proceedings was neither harmless nor
justified and, therefore, the testimony of the witness was precluded); Great Seats Inc.
v. Great Seats Ltd., 100 USPQ2d 1323, 1326-27(TTAB 2011) (opposer was under a
duty to supplement its discovery responses, and disclosing for the first time in its
pretrial and amended pretrial disclosures the identities of twenty-seven witnesses
resulted in surprise to applicant).
Applicant’s objection to David Chen’s testimony regarding purported inquiries
from potential customers evidencing confusion is sustained and we will not give them
any consideration.
Opposition No. 91227852
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II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the application files at issue. The parties introduced the
following testimony and evidence:
A. Opposer’s testimony and evidence.
1. Notice of reliance on news articles posted on the Internet regarding escape
room games;13
2. Notice of reliance on 10 third-party registrations and excerpts from the
registrants’ websites showing use of the word “Escape” or the term “Escape
Games” for escape room game services;14
3. Notice of reliance on 24 third-party registrations and excerpts from the
registrants’ websites showing use of the word “Escape” or the term “Escape
Games” for escape room games;15
4. Notice of reliance on excerpts from 23 third-party websites showing use of
the term “Escape Games”;16
5. Notice of reliance on excerpts from 27 third-party websites showing use of
the term “Escape Rooms”;
6. Testimony declaration of David K. Chen, Opposer’s Managing Member; 17

13 23 TTABVUE.
14 21 TTABVUE.
15 22 TTABVUE.
16 24 TTABVUE.
17 26 and 28 TTABVUE. The portions of the Chen testimony declaration designated
confidential are posted at 27 TTABVUE.
Opposition No. 91227852
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7. Notice of reliance on
a. Applicant’s responses to Opposer’s interrogatory Nos. 1-11, 14 and 20;18
b. Opposer’s application Serial No. 86921429 for the mark MISSION
ESCAPE GAMES (in standard characters);19
c. Opposer’s application Serial No. 86941933 for the mark MISSION (in
standard characters);20
d. An excerpt from the USPTO ID manual for the term “escape room”;21
e. A dictionary definition for the word “Mission”;22
f. Excerpts from Applicant’s website;23
g. News articles referring to Opposer posted on the Internet;24
h. Excerpts from Opposer’s Twitter account;25
i. Excerpts from Opposer’s Instagram account;26
j. Excerpts from Opposer’s Facebook profile;27

18 29 TTABVUE 11-26.
19 29 TTABVUE 28-107.
20 29 TTABVUE 109-138.
21 29 TTABVUE 140.
22 29 TTABVUE 142-153.
23 29 TTABVUE 155-163.
24 29 TTABVUE 165-204.
25 29 TTABVUE 206-220.
26 29 TTABVUE 222-252.
27 29 TTABVUE 254-313.
Opposition No. 91227852
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k. Excerpts from the TripAdvisor website (tripadvisor.com) featuring
Opposer;28
l. Excerpts from the Groupon website (groupon.com) featuring Opposer;29
and
m. News articles referring to Opposer posted on the Internet;30 and
8. Rebuttal notice of reliance on social media posts from third-parties using a
“Mission” formative mark.31
B. Applicant’s testimony and evidence.
1. Notice of reliance on Opposer’s responses to Applicant’s interrogatory Nos.
12, 18, 25, 26 and 27;32
2. Notice of reliance on news articles referring to escape room games posted
on the Internet;33
3. Notice of reliance on excerpts from websites using a “Mission” formative
mark in connection with escape room game services;34

28 29 TTABVUE 315-357.
29 29 TTABVUE 359-361.
30 29 TTABVUE 363-453.
31 36 TTABVUE.
32 32 TTABVUE.
33 33 TTABVUE.
34 30 TTABVUE.
Opposition No. 91227852
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4. Notice of reliance on third-party registrations for entertainment services
other than escape room game services consisting of “Mission” formative
marks and excerpts from the registrant’s websites;35
5. Notice of reliance on excerpts from the Forbes magazine website
(Forbes.com) and the Statista website (statista.com) showing reported
revenues for purportedly famous companies;36 and
6. Testimony Declaration of Jason Cherry, Applicant’s sole member.37
III. Priority
As noted above, the Board previously found that Opposer has proven its priority
for the mark MISSION ESCAPE GAMES used in connection with “arranging and
conducting entertainment through interactive, puzzle adventure games and
challenges, namely, featuring room escape, problem solving, teamwork and strategy
and social entertainment events.” Therefore, the only remaining issue concerning
priority is Opposer’s claimed prior use of MISSION as a standalone mark. In order to
establish priority, Opposer must show that it made common-law use of its purported
MISSION standalone mark in connection with “arranging and conducting
entertainment through interactive, puzzle adventure games and challenges, namely,
featuring room escape, problem solving, teamwork and strategy and social

35 31 TTABVUE.
36 35 TTABVUE.
37 34 TTABVUE.
Opposition No. 91227852
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entertainment events,” prior to November 10, 2015, the earliest of Applicant’s filing
dates. Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1023 (TTAB 2009).
David K. Chen, Opposer’s Managing Member, testified that Opposer has used
MISSION as a mark to identify its services since at least as early as April 2014. He
introduced screenshots from its website showing use of its marks printed from the
Internet Archive Wayback Machine (archive.org) from December 16, 2014, January
12, 2015 and October 27, 2015.38 Opposer displays MISSION in its logo reproduced
below:39

Applicant argues that because Opposer always uses the word “Mission” in
connection with “Escape Games” or in the logo format, shown above, Opposer does
not use the word “Mission” as a standalone mark.40 In essence, Applicant contends
that the word “Mission” is so integrated into the mark as a whole that the word
“Mission” does not create a separate and distinct commercial impression.
A mark is considered “unitary” if “the elements of a mark are so integrated or
merged together that they cannot be regarded as separable.” TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) §1213.05 (October 2018). As such, a unitary mark

38 Chen Testimony Decl. ¶2 and Exhibit A (26 TTABVUE 2 and 255-268). The June 28, 2014
webpage did not show any use that could arguably be considered as showing MISSION used
as a mark.
39 26 TTABVUE 257, 259, 261 and 265.
40 Applicant’s Brief, pp. 10-11 (39 TTABVUE 11-12).
Opposition No. 91227852
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has a “single and distinct commercial impression.” Dena Corp. v. Belvedere Int’l Inc.,
950 F.2d 1555, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (finding EUROPEAN
FORMULA and design for cosmetic products not unitary since “the elements are not
so merged together that they cannot be regarded as separate” and the proximity of
the words to the design feature “does not endow the whole with a single, integrated,
and distinct commercial impression”). The EUROPEAN FORMULA and design mark
is reproduced below:

In finding that EUROPEAN FORMULA engenders a distinct commercial impression
separate and apart from the mark in its entirety, the Court held
• “The words EUROPEAN FORMULA are separate from the circular design.
These two elements are not connected by any lines or design features. …
Nothing melds EUROPEAN FORMULA with the circular design to create a
single indivisible symbol.” 21 USPQ2d at 1052;
Opposition No. 91227852
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• “[N]o particular meaning in the words EUROPEAN FORMULA or the circular
design links these detached features,” and “the dark background does not join
the two disparate elements.” Id.
• “The mere proximity of EUROPEAN FORMULA to the unrelated design
feature does not endow the whole with a single, integrated, and distinct
commercial impression.” Id.
Likewise, in Opposer’s MISSION ESCAPE GAMES logo, ,
nothing melds the word “Mission” with term “Escape Games” underlining it, and the
mere proximity of the word “Mission” with the term “Escape Games” does not endow
the logo with a single, integrated and distinct commercial impression. The word
“Mission” in Opposer’s logo creates a commercial impression separate and apart from
the logo format because it is displayed as the most prominent part of the logo.
We find that Opposer has used MISSION to identify escape room game services
since at least as early as December 16, 2014 and, therefore, Opposer has proven that
it made prior use of its MISSION trademark.
However, this is of little importance because we focus our likelihood of confusion
analysis on Opposer’s mark MISSION ESCAPE GAMES. This mark is more similar
to Applicant’s MISSION ESCAPE and MISSION ESCAPE ROOMS than Opposer’s
MISSION mark. If the opposition cannot be sustained on the basis of Opposer’s
MISSION ESCAPE GAMES, it could not be sustained on the basis of its MISSION
mark. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Opposition No. 91227852
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IV. Likelihood of confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973) (“du Pont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each du
Pont factor that is relevant or for which there is evidence of record. See M2 Software,
Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006);
ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)
(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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 differences in the marks.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
Opposition No. 91227852
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1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Primrose Ret. Communities, LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016).
A. The similarity or dissimilarity and nature of the services.
Applicant is seeking to register its marks MISSION ESCAPE and MISSION
ESCAPE ROOMS for “conducting live entertainment in the nature of games
featuring room escape, puzzles, and team strategy” and Opposer has proven that it is
using its MISSION ESCAPE GAMES mark for escape room game services.
Applicant contends that, while the services are “very similar,” they are not
identical, as Opposer’s description of its services is broader, “and could encompass all
sorts of social entertainment events.”41
Escape rooms are “live-action team-based games where
players discover clues, solve puzzles, and accomplish tasks
in one or more rooms in order to accomplish a specific goal
(usually escaping from the room) in a limited amount of
time.”42
David Chen described Opposer’s escape room game services as follows:
[T]he entertainment services promoted, offered and
provided by [Opposer] under its MISSION Marks include
arranging and hosting games in which a group of
customers are “locked in a room,” each with a storyline or
theme, and provided with a series of related puzzles and
clues which, if solved, will allow them to unlock the door,
or escape. The goal of each game is for the team of
customers to work together to solve all of the clues in the
room in order to escape before the end of the one-hour game

41 Applicant’s Brief, p. 30 (39 TTABVUE 31).
42 Nicholson, S., Creating Engaging Escape Rooms for the Classroom, Childhood Education
(2018) (23 TTABVUE 14).
Opposition No. 91227852
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period. Should customers be unable to successfully escape
within one hour, they are “released.”43
Jason Cherry described Applicant’s services as follows:
The services provided under [Applicant’s] Marks include
conducting live entertainment in the nature of games
featuring room escape, puzzles, and team strategy.
Customers, usually in groups, are “locked” in one of several
themed rooms. The customers then work together to
evaluate clues and solve a series of puzzles which, when
solved, allow the customers to escape the room. In the
event the customers are unable to escape the room in the
allotted time period (typically 50 minutes), they are
released from the room by [Applicant’s] staff.44
Mr. Cherry also testified that “[t]he concept is globally recognized as an ‘escape room’
or ‘escape game.”45
Opposer is relying on its common law rights of its MISSION ESCAPE GAMES
mark for escape room game services and not registrations and, thus, we compare
Opposer’s services established by the evidence of record to Applicant’s identified
services. Because Applicant’s description of services includes escape room game
services and Opposer has proven that it uses its mark in connection with escape room
game services, the services are identical.46

43 Chen Testimony Decl. ¶3 (26 TTABVUE 3).
44 Cherry Testimony Decl. ¶9 (34 TTABVUE 5).
45 Cherry Testimony Decl. ¶7 (34 TTABVUE 4).
46 In any event, Opposer need not prove, and we need not find, similarity as to each and every
activity listed in the description of services. It is sufficient for a refusal based on likelihood of
confusion that relatedness is established for any item encompassed by the description of
services in a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Opposition No. 91227852
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B. Established, likely-to-continue channels of trade and purchasers to whom sales
are made.

According to David Hochman, author of “How To Start An Escape Room Business
In A Competive Market” (Forbes.com) (August 5, 2016),
Who are your customers?
Mostly working young professional 24 to 35 years old.
They’re the ones that love to try new things. Experience-
seeker types; always looking for something new to do.
They’re not as much the ones going to Coachella and
Burning Man as people who just enjoy a great night out.
They might start at a bar and want a group activity beyond
trivia night or karaoke. That’s when they come to us.47
* * *
How do you get your customers?
We do a lot of marketing, mainly on social media. We’ve
had some influencers come and check the space. We invited
some lifestyle bloggers and they write about it. Kristin Bell
came in and shot a tweet out saying escape IQ was the most
fun she’s had in years. That was a big boost. We run Google
advertisements.48
Opposer promotes its services to the general public and as team building exercises
for companies.49 David Chen testified that Opposer advertises and promotes its
services through its website,50 online deal sites through which discounted tickets are
sold, such as Groupon.com and LivingSocial.com,51 through social media, such as

47 23 TTABVUE 119.
48 23 TTABVUE 120.
49 Chen Testimony Decl. ¶24 (26 TTABVUE 9).
50 Chen Testimony Decl. ¶¶2 and 14 (26 TTABVUE 2 and 6).
51 Chen Testimony Decl. ¶26 (26 TTABVUE 10).
Opposition No. 91227852
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Instagram, Twitter, and Facebook,52 and though advertising on the Yelp.com
website.53
Applicant’s customers include individuals and “local businesses which purchase
admission for employees as a team building activity.”54
The class of purchasers of the services provided under
[Applicant’s marks] is any age group from age 9 and up.
While the millennial generation is [the] target market most
likely to return, anyone could be a customer.55
Jason Cherry testified that Applicant advertises its services through local magazines,
advertisements at movie theaters, mailers, brochures, and social media, such as
Facebook, Google Ads, Yelp.com, and TripAdvisor.com.56
Because the scope of the registration applicant seeks is defined by its application
(and not by its actual use), it is the application (and not actual use) to which we must
look in determining applicant’s right to register:
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 set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales
of the goods are directed.
Octocom Syst. Inc. v. Houston Comput. Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). Where, as here, there is no limitation in Applicant’s description

52 Chen Testimony Decl. ¶27 (26 TTABVUE 10).
53 Chen Testimony Decl. ¶29 (26 TTABVUE 11).
54 Cherry Testimony Decl. ¶¶14, 16, and 19 (34 TTABVUE 6-7).
55 Applicant’s response to interrogatory No. 6 (29 TTABVUE 18).
56 Cherry Testimony Decl. ¶19 (34 TTABVUE 6-7).
Opposition No. 91227852
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of services, we must presume that Applicant’s escape room game services move in all
channels of trade that would be normal for such services, and that they would be
purchased by all potential customers, including Opposer’s channels of trade and
classes of consumers. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed.
Cir. 1983); see also Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013) (“PTO proceedings are ‘based on the
content of the registration application’ and not upon any specific use of the challenged
mark in commerce.”) (quoting Mayer/Berkshire Corp. v. Berkshire Fashions, Inc., 424
F.3d 1229, 76 USPQ2d 1310, 1313 (Fed. Cir. 2005) (“an opposition to registration is
based on the content of the registration application.”); Morton-Norwich Prods., Inc. v.
N. Siperstein, Inc., 222 USPQ 735, 736 (TTAB 1984) (“Since there is no limitation in
applicant’s identification of goods, we must presume that ‘applicant's paints move in
all channels of trade that would be normal for such goods, and that the goods would
be purchased by all potential customers.”).
Applicant argues that it will render its escape room game services in its local
trading area, as does Opposer, and, therefore, the services are offered through
different trade channels to different consumers.57 Applicant’s argument is unavailing
where, as here, Applicant is seeking a geographically unrestricted registration.
Section 7(b) of the Trademark Act of 1946, 15 U.S.C. §1057(b), creates a presumption
that a registrant has the exclusive right to use its mark throughout the United States.

57 Applicant’s Brief, p. 29 (39 TTABVUE 30). Applicant operates two escape room game
venues: one in Annapolis, Maryland and one in Waugh Chapel, Maryland, and plans to open
a third in Hanover, Maryland. Cherry Testimony Decl. ¶ 2 (34 TTABVUE 2).
Opposition No. 91227852
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Therefore, the geographical distance between the present locations of the respective
businesses of the two parties has no relevance in this case. Board proceedings are
determined independent of the actual geographic scope of use. See Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983); Panda
Travel Inc. v. Resort Option Enters. Inc., 94 USPQ2d 1789, 1796 (TTAB 2009). Hence,
the parties’ services would tend to move through the same normal channels of trade
to the same usual classes of customers.
C. The strength of Opposer’s MISSION ESCAPE GAMES mark.58

In determining the strength of a mark, we consider both its inherent/conceptual
strength, based on the nature of the mark itself, and its commercial strength, based
on marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d
1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both
by its conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-
72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent
strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc.,
80 USPQ2d 1881, 1899 (TTAB 2006). Market strength is the extent to which the
relevant public recognizes a mark as denoting a single source. Tea Bd. of India v.
Republic of Tea Inc., 80 USPQ2d at 1899.

58 The evidence regarding Opposer’s marks refers to MISSION ESCAPE GAMES. With the
exception of David Chen’s uncorroborated testimony, there is no evidence that third parties
refer to Opposer or its services as MISSION. In this regard, we note that Opposer’s specimen
of use supporting its MISSION application was the MISSION ESCAPE GAMES logo
displayed and discussed in the priority analysis.
Opposition No. 91227852
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1. The inherent strength of the MISSION ESCAPE GAMES mark.
Opposer has disclaimed the wording ESCAPE GAMES in its application and has
expressly conceded that the wording ESCAPE GAMES is, at minimum, merely
descriptive of its services.59 The word “Mission” is defined, inter alia, as “a specific
task with which a person or group is charged • Their mission was to help victims of
the disaster.”60 When used in connection with escape room game services, the word
“Mission” suggests the object or purpose of the game is to escape from the room. In
this regard, David Chen, Opposer’s Managing Member, testified that “the inclusion
of the term MISSION, evokes the idea of a of [sic] secret mission or spy mission, and
as such, suggests that players will be engaging in room-escape games characterized
by fast-paced action and which require the skills of intelligence, logic, deduction,
focus, cooperation, and teamwork in order to complete their objectives and ultimately
win the game.”61 Likewise, Jason Cherry, Applicant’s sole member, testified that “I
chose the word Mission, considering its ordinary dictionary definition of a goal or
objective and being reminiscent for Mission Impossible. … the meaning of
[Applicant’s] Marks is that your mission is to escape the room.”62
Applicant introduced excerpts from 13 third-party websites advertising escape
room game services using “Mission” as part of their mark or trade name in support

59 June 10, 2016 Office Action (29 TTABVUE 42) and June 14, 2016 Response to Office Action
(29 TTABVUE 37 and 38); Opposer’s Brief, p. 15 (37 TABVUE 22).
60 Merriam-Webster.com (29 TTABVUE 143).
61 Chen Testimony Decl. ¶6 (26 TTABVUE 4).
62 Cherry Testimony Decl. ¶7 (34 TTABVUE 4).
Opposition No. 91227852
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of its argument under du Pont factor 6 (the number and nature of similar marks in
use on similar goods or services) that it is in a field crowded with other “mission”
marks discussed below. But Applicant also points to these uses as further support
that the word “mission” is suggestive, i.e., third-parties are using it because it “is
particularly fitting for all sorts of games.”63
• Mission Escape Adventure Rooms (missionescapeadventurerooms.com) in
Niceville, Florida;64
• Mission Manor (missionmanor.com) in Minneapolis/St. Paul, Minnesota;65
• 60 MINUTE MISSIONS Escape Room (60minutemissions.com) in
Greensburg, Pennsylvania;66
• Mission Escape (missionescapeva.com) in Poquoson, Virginia;67
• Mission Escape Atlanta (missionescapeatlanta.com) in Atlanta, Georgia;68
• Mission Escapes (missionescapes.com/Seattle) in Seattle, Washington;69
• My Escape Mission (myescapemission.com) in Madison, Wisconsin;70

63 Applicant’s Brief, pp. 12-17 (39 TTABVUE 13-18).
64 30 TTABVUE 10-11.
65 30 TTABVUE 13-16.
66 30 TTABVUE 18-21.
67 30 TTABVUE 23-29.
68 30 TTABVUE 31-35.
69 30 TTABVUE 37-43. This entity appears to be related to Mission Escapes
(missionescapes.com/Denver) (30 TTABVUE 45-51) because the websites are identical except
for the location information.
70 30 TTABVUE 53-57.
Opposition No. 91227852
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• Mission: Escape Reality Game (missionescapenwi.com) in Chesterton,
Indiana;71
• Escape Mission (escapemissionchattanooga.com) in Chattanooga,
Tennessee;72
• Mission X Escape (missionxescape.com) in Durham, North Carolina;73
• Mission Breakout (missionbreakoutlafayette.com) in Lafayette, Indiana;74
• Blue Ops Mission (bluopsmission.com) in Arlington, Texas;75 and
• The Impossible Mission (theimpossiblemission.com) in an unidentified
location in telephone area code 708 (southern Cook County, Illinois).76
Opposer’s argument that the third parties all began using their MISSION marks
subsequent to Opposer is unpersuasive in the context of showing conceptual
weakness.77 Measuring inherent distinctiveness is at the time of Opposer’s first use
would be unfair. In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686
(Fed. Cir. 2010).
Judging inherent distinctiveness at the time of first use
would be fundamentally unfair. As we have noted,
“[t]rademark rights are not static.” Morton-Norwich, 671
F.2d 1332, [213 USPQ 9, 18] (CCPA 1982); see Thunderbird
Prods., 406 F.2d 1389, [160 USPQ 730, 732] (CCPA 1969).
The test for inherent distinctiveness depends on whether

71 30 TTABVUE 59-66.
72 30 TTABVUE 68-75.
73 30 TTABVUE 77-80.
74 30 TTABVUE 81-83.
75 30 TTABVUE 85-90.
76 30 TTABVUE 92.
77 Opposer’s Reply Brief, p. 5 (40 TTABVUE 12).
Opposition No. 91227852
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the mark, or a variation thereof, has been in common use
in general or in the particular field. A term or device that
was once inherently distinctive may lose its distinguishing
characteristics over time. See Thunderbird Prods., 406
F.2d at 1391–92 [160 USPQ at 732]. It would be unfair for
an applicant to delay an application for registration and
then benefit from having distinctiveness measured at the
time of first use. This would allow an applicant to preempt
intervening uses that might have relied on the fact that the
registration for the mark as inherently distinctive had not
been sought at an earlier time.
Chippendales USA, 96 USPQ2d at 1686-87; see also TiVo Brands LLC v. Tivoli, LLC,
129 USPQ2d 1097, 1113 n.69 (TTAB 2018). In any event, the third-party use of
MISSION in marks simply underscores what the dictionary definition and testimony
establish, namely that the word “Mission” has a suggestive significance in connection
with escape room game services which presumably is why the third parties adopted
MISSION as a part of their marks.
Based on the dictionary definition of the word “Mission” the parties’ testimony and
further illustrated by third-party use of the word “Mission” in connection with escape
room game services, we find that the word “Mission” is suggestive when used in
connection with escape room game services. Thus, MISSION ESCAPE GAMES is not
an inherently strong mark.
2. The commercial strength of Opposer’s MISSION marks.

Opposer has introduced the testimony and evidence set forth below to show that
its MISSION marks are commercially strong:
Because Opposer designated as confidential its sales and advertising
figures between May 2014 and February 2018, we may only refer to them
Opposition No. 91227852
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in general terms.78 However, Jason Cherry, Applicant’s sole member,
testified that between May 2016 and April 17, 2018, Applicant sold
approximately 43,000 tickets generating $1,247,217 in revenues at
Applicant’s Annapolis venue.79 That is more than Opposer sold at its
Manhattan and Queens locations between May 2014 and October 2015,80
and approximately the same revenues as Opposer generated between
November 1, 2015 and December 31, 2016 “across all of our locations.”81
With respect to how revenues prove the commercial strength of marks, the
revenues show that the parties’ marks have similar commercial strength.82
Presumably Opposer’s revenues are sufficient to allow Opposer to stay in
business, grow and prosecute this opposition;83

78 Chen Testimony Decl. ¶¶19-23 and 28-30 (27 TTABVUE 7-8 and 11).
79 Cherry Testimony Decl. ¶22 (34 TTABVUE 7).
80 Chen Testimony Decl. ¶19 (27 TTABVUE 7).
81 Chen Testimony Decl. ¶23 (27 TTABVUE 9).
82 Opposer has not offered any evidence or testimony that illuminates whether Opposer’s
escape room game services are any more or less successful than any other escape room game
service or how much revenue and how many ticket sales an escape room game service should
generate.
83 Opposer has locations in Anaheim, California, West Hartford, Connecticut, Manhattan,
New York, Flushing, New York and Philadelphia, Pennsylvania. Chen Testimony Decl. ¶¶7-
11 (26 TTABVUE 4-5).
Out of nearly 2000 escape rooms, the largest player owns 37
venues (Key Quest). Owning more than 7 escape rooms would
put you in the top 10. This is likely due to the relatively low cost
of opening an escape room, particularly in a low budget real
estate market. Launching an escape room in what we might call
second tier markets can cost as low as $50K, a sum that is
attainable by many.
Crosti, G., “The State of the Escape Room Industry, 2017,” (October 11, 2017)
(blog.updraftventures.com) (23 TTABVUE 88); see also Spira, L., “Three Years of Room
Opposition No. 91227852
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• As of February 15, 2017, Opposer’s Facebook profiles displaying its
MISSION marks have had over 26,000 page “likes” and over 26,000
followers.84 Presumably, Opposer’s position is that 26,000 page likes and
26,000 followers over the last year is substantial. However, without more
background, trying to put these figures into context is speculative;
• Opposer asserts that its marks have achieved recognition because it has
hosted numerous large and well-known companies whose identities have
been designated confidential.85 Likewise, Applicant “has provided services
to groups of employees from at least 125 businesses/employers.”86 Media
has reported that corporate clients are a staple for escape room game
services.
Corporate teams can fill escape rooms on weekdays, when
rooms might otherwise sit empty. Larger corporations can
become repeat clients, bringing new departments every
week. And they can be sold elaborate packages and extras,
with snacks for employees and meeting space provided
adjacent to the escape room.
Companies can’t seem to get enough of the escape room as
a team-building exercise. Egnor [Daniel Egnor, an escape-
game enthusiast and creator of the Escape Room Directory]
says it is easy to see the appeal: “A lot of classic off-sites
are very tame and not challenging, like cheese tasting. The
more challenging ones often had a physical component. …
This is a very inclusive off-site. It’s not paintball.”

Escapes, The Growth of the US Market,” (July 30, 2017) (roomescapeartist.com)
(23 TTABVUE 93-103) (listing the U.S. escape room game vendors with more than five
locations and, therefore, not including Opposer).
84 Chen Testimony Decl. ¶28 (26 TTABVUE 11).
85 Chen Testimony Decl. ¶24 (27 TTABVUE 8).
86 Cherry Testimony Decl. ¶14 and Exhibit 4 (34 TTABVUE 6 and 32-34).
Opposition No. 91227852
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At Escape Expert in Dallas, the corporate package includes
video footage of employees playing the game for “review at
a later stage.”87
It is not clear how having hosted numerous large and well-known
companies has contributed to the renown of Opposer’s MISSION marks
because Opposer did not offer any testimony or evidence regarding why
those companies selected Opposer’s escape room services (e.g., Was Opposer
the closest escape room game service? Was Opposer the least expensive
escape game room service? Was Opposer’s venue near a favorite
restaurant?). There was no testimony or evidence as to whether those
companies published information regarding their escape room game
experience with Opposer, how many employees or clients of those
companies participated, or whether those companies booked subsequent
events or referred to others Opposer’s escape room game services;
• Opposer contends that because it has worked with large movie production
companies, offering film-inspired games and events under its MISSION
marks to promote the movie releases such as Penguins of Madagascar, The
Gallows, Allegiant, and IT Movie.88 However, Opposer introduced excerpts
from its Facebook page promoting these game room escape promotions
rather than promotional materials or press releases issued from the movie
companies. It is not clear how these so called film-inspired escape room

87 French, S. “The Unbelievably Lucrative Business of Escape Rooms,” (MarketWatch.com)
(July 21, 2015) (23 TTABVUE 126-27).
88 Chen Testimony Decl. ¶25 and Exhibit G (26 TTABVUE 9-10 and 176-184).
Opposition No. 91227852
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games affected the renown of Opposer’s MISSION marks because Opposer
was touting the movie themes rather than the movie companies touting the
MISSION ESCAPE GAMES escape room game services ; and
• Opposer has received unsolicited media attention from TripAdvisor.com,
Groupon.com, CityGuideNY.com, HuffingtonPost.com.Hihinkslife.com,
Timeout.com, Newsweek.com, ABC News Radio, and
RoomEscapeArtist.com, 89 For example, as of February 15, 2018, Opposer’s
Manhattan, Anaheim, and West Hartford locations were ranked number 1
on TripAdvisor.com’s list of fun activities in those locations90 and
Philadelphia was ranked No. 3.91
Opposer has failed to show that its MISSION ESCAPE GAMES mark is so
commercially strong that we should accord it a broader scope of protection than we
would to any other suggestive mark.
3. The number and nature of similar marks in use in connection with similar
services.

As noted above Applicant argues that in view of the third-party uses and
registrations incorporating the word “mission,” Opposer’s marks “are but one in a

89 Chen Testimony Decl. ¶¶31-41 and Exhibits N-X (26 TTABVUE 12-14 and 29 TTABVUE
83-223).
90 Chen Testimony Decl. ¶¶31-33 and Exhibits N-P (26 TTABVUE 12 and 29 TTABVUE 83-
89 and 97-115). The New York City location also received TripAdvisor.com’s Certificate of
Excellence. Chen Testimony Decl. ¶31 and Exhibit N (26 TTABVUE 12 and 29 TTABVUE
90).
91 Chen Testimony Decl. ¶34 and Exhibit Q (26 TTABVUE 12 and 29 TTABVUE 117-128).
Opposition No. 91227852
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very crowded field of marks with only narrow protection.”92 [E]vidence of third-party
use bears on the strength or weakness of an opposer's mark. … The weaker an
opposer’s mark, the closer an applicant's mark can come without causing a likelihood
of confusion and thereby invading what amounts to its comparatively narrower range
of protection.” Jack Wolfskin Austrang Fur Draussen GmbH & Co. KGAA v. New
Millenium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir. 2015)
(quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1674 (Fed. Cir. 2015)); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005)
(“Evidence of third-party use of similar marks on similar goods is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.”).
As noted above, Opposer contends that the third-party uses have limited, if any,
probative value because only one third party used its MISSION/MISSION ESCAPE-
formative mark prior to Opposer’s first use of its MISSION ESCAPE GAMES mark.93
However, the authority on which Opposer relies does not support its contention that
subsequent third-party use is not probative of marketplace strength or weakness.94
American Lebanese Syrian Assoc. Charities, Inc. v. Child Health Research Inst., 101
USPQ2 1022, 1028 (TTAB 2011). Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d

92 Applicant’s Brief, pp. 12-17 (39 TTABVUE 13-18).
93 Opposer’s Reply Brief, p. 5 (40 TTABVUE 12) and 36 TTABVUE (notice of reliance on
excerpts from social media postings for the third-party users).
94 Conde Nast Publ’n v. Am. Greetings Corp., 329 F.2d 1012, 141 USPQ 249, 251-52 (CCPA
1964) and In re Helene Curtis Indus. Inc., 305 F.2d 491, 134 USPQ 501, 504 (CCPA 1962),
are inapplicable because both cases involved third-party registrations, not third-party use,
and they were for different goods.
Opposition No. 91227852
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1881, 1899 (TTAB 2006) both hold that, in determining the strength of a mark, we
consider both its inherent strength based on the nature of the mark itself and its
market strength. The cited quote from McCarthy’s treatise expressly states that
evaluation of marketplace strength or weakness (“customer recognition value of the
mark”) is evaluated at the time the mark is asserted in litigation – which includes
the trial period. 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:83 (5th ed. Nov. 2018 update) (“The second evaluates the actual
customer recognition value of the mark at the time registration is sought or at the
time the mark is asserted in litigation to prevent another’s use.”).
Here, the evidence is somewhat limited in probative value. None include the word
GAMES and only eleven include the words MISSION and ESCAPE used in
connection with escape rooms. Of the eleven uses that include both words MISSION
and ESCAPE only six use the words MISSION ESCAPE at the beginning in that
order.95 Moreover, there is no evidence of the extent of this third-party use. Palm Bay
v. Veuve Clicquot, 73 USPQ2d at 1693 (where record includes no evidence about
extent of third-party use, probative value is minimal). This is not a situation where
the evidence is “powerful on its face.” Juice Generation v. GS Enters., 115 USPQ2d at
1674. Nonetheless, taken in the totality of this record, it provides further support for
the position that the mark is weak.96

95 34 TTABVUE.
96 The third-party registrations that include some evidence of use in the marketplace are for
different goods or services. In re i.am.symbolic, LLC, 123 USPQ2d at 1751 (disregarding
third-party registrations for other types of goods where the proffering party had neither
proven nor explained that they were related to the goods in the cited registration); In re Thor
Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (the third-party registrations are of limited
Opposition No. 91227852
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Considering the record as a whole, including evidence pertaining to both
conceptual/inherent and commercial strength, we find that Opposer’s mark is
appropriately placed on the “weak” side of the “‘spectrum from very strong to very
weak.’” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (quoting In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
D. The similarity or dissimilarity of the marks.
We now turn to the du Pont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. du Pont, 177 USPQ at 567. “Similarity in any one of
these elements may be sufficient to find the marks confusingly similar.” In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014); see also Krim-Ko Corp. v. Coca-Cola Bottling
Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity
in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted).
In comparing the marks, we are mindful that where, as here, the services are
identical, the degree of similarity necessary to find likelihood of confusion need not
be as great as where there is a recognizable disparity between the services. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).

probative value because the goods identified in the registrations appear to be in fields which
are far removed from the goods at issue).
Opposition No. 91227852
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“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. v. Triumph Learning , 101 USPQ2d at 1721; see
also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046,
103 USPQ2d 1435, 1440 (Fed. Cir. 2012). The proper focus is on the recollection of
the average customer, who retains a general rather than specific impression of the
marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39,
40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012);
Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the
services at issue are escape room game services, the average customer is an ordinary
consumer who likes to solve problems.
Applicant is seeking to register the marks MISSION ESCAPE and MISSION
ESCAPE ROOMS. Opposer’s mark is MISSION ESCAPE GAMES. The marks of the
parties are similar because they all share the term “Mission Escape.” Moreover, the
dominant portion of the marks is the word “Mission” because the word “Escape”97 and

97 Applicant disclaimed the exclusive right to use the word “Escape” in its MISSION ESCAPE
application in response to the Examining’s Attorney requirement on the ground that the word
“Escape” is descriptive of entertainment services featuring a room escape. March 10, 2016
Office Action (TSDR 1-2) and March 28, 2016 Examiner’s Amendment (TSDR 1).
Citations to the TSDR database are to the downloadable .pdf format.
Opposition No. 91227852
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the terms “Escape Rooms”98 and “Escape Games” are descriptive.99 It is well-settled
that disclaimed, descriptive matter may have less significance in likelihood of
confusion determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has
noted that the ‘descriptive component of a mark may be given little weight in reaching
a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405,
41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d
1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”). There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
such as a common dominant element, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re Nat’l Data Corp., 224 USPQ at
751; see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012).

98 Applicant disclaimed the exclusive right to use the term “Escape Rooms” in its MISSION
ESCAPE ROOMS application in response to the Examining’s Attorney requirement on the
ground that the term “Escape Rooms” is descriptive of entertainment services featuring a
room escape. March 10, 2016 Office Action (TSDR 1-2) and March 28, 2016 Examiner’s
Amendment (TSDR 1).
99 Mr. Cherry testified that “[t]he concept is globally recognized as an ‘escape room’ or ‘escape
game.” Cherry Testimony Decl. ¶7 (34 TTABVUE 4). Also, Opposer disclaimed the exclusive
right to use the term “Escape Games” in its MISSION ESCAPE GAMES application in
response to the Examining’s Attorney requirement on the ground that the term “Escape
Games” is descriptive of escape room game services. June 10, 2016 Office Action
(29 TTABVUE 42) and June 14, 2016 Response to Office Action (29 TTABVUE 37 and 38).

Opposition No. 91227852
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Further emphasizing the significance of the word “Mission” as the dominant part
of the marks is its location as the first part of the marks. See Palm Bay v. Veuve
Clicquot, 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark
VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word
to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers will first notice the identical lead word); In re Integrated Embedded, 120
USPQ2d 1504, 1513 (TTAB 2016) (noting that the dominance of BARR in the mark
BARR GROUP is reinforced by its location as the first word in the mark); Presto
Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often
the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered”).
“[I]f the dominant portion of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624, 624 (TTAB
1985). The peripheral differences in this case fail to distinguish the marks. The
addition of the word the term “Rooms” to Applicant’s second applied-for mark does
not serve to distinguish the marks from Opposer’s MISSION ESCAPE GAMES
because the marks look similar and sound similar (i.e., they share MISSION
ESCAPE) and have the same meaning and engender the same commercial impression
(i.e., the purpose of the exercise is to escape). The differences between Applicant’s
marks MISSION ESCAPE and MISSION ESCAPE ROOMS and Opposer’s mark
Opposition No. 91227852
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MISSION ESCAPE GAMES are not sufficient to distinguish Applicant’s marks from
Opposer’s mark.
In reaching this finding of fact, we have taken in consideration the fact that
Opposer’s mark MISSION ESCAPE GAMES is suggestive and, therefore, entitled to
a narrow scope of protection or exclusivity of use. Nevertheless, we find that
Applicant’s marks MISSION ESCAPE and MISSION ESCAPE ROOMS bear such a
striking resemblance to Opposer’s mark MISSION ESCAPE GAMES that consumers
and potential consumers will assume that there is some connection, association or
sponsorship among the marks.
Applicant argues that even though it has applied to register its mark in standard
characters, the trade dress utilized by both parties distinguishes the marks.100
However, “a distinction in trade dress cannot weigh against likelihood of confusion
with respect to the registration of a simple word mark like [MISSION ESCAPE or
MISSION ESCAPE ROOMS]. The reason is that such dress might well be changed
at any time; only the word mark itself is to be registered.” Kimberly Clark Corp. v.
H. Douglas Enterprises, Ltd., 774 F.2d 1144, 227 USPQ 541, 543 (Fed. Cir. 1985); see
also Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453,
1458 (Fed. Cir. 1992) (“for a word mark we do not look to the trade dress, which can
be changed at any time”; but trade dress may be relevant to analyze whether the
words engender the same commercial impression). The trade dress of the parties does

100 Applicant’s Brief, p. 22 (39 TTABVUE 23).
Opposition No. 91227852
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not distinguish the meaning or commercial impression engendered by the term
MISSION ESCAPE.
We find that Applicant’s marks are similar to Opposer’s MISSION ESCAPE
GAMES mark in terms of their appearance, sound, connotation and commercial
impression.
E. The nature and extent of any actual confusion.
David Chen, Opposer’s Managing Member, testified that Opposer became aware
of Applicant after it received an email from the Baltimore Sun Media Group inquiring
about the opening of a MISSION ESCAPE room game in Annapolis, Maryland.101
However, the email is an invitation by the writer to discuss advertising in the
Annapolis region, including “vehicles to reach outside of the Anne Arundel market.”
The email does not refer to the opening of any escape room game, let alone a
MISSION ESCAPE GAMES venue. Without testimony from the author, we can
speculate about why he contacted Opposer, but we do not know for sure.
The nature and extent of any actual confusion is a neutral du Pont factor.
F. The conditions under which sales are made.
Applicant argues that purchasers of escape room services exercise a high degree
of consumer care.102 Jason Cherry, Applicant’s sole member, testified that purchasers
exercise a high degree of care selecting escape room services for the following reasons:

101 Chen Testimony Decl. ¶15 and Exhibit D (26 TTABVUE 6 and 27 TTABVUE 17). Exhibit
D was improperly designated confidential.
102 Applicant’s Brief, p. 27 (39 TTABVUE 28).
Opposition No. 91227852
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• Applicant’s services cost $29 per person for a 50 minute session for a group
of 8-12 people;103
• Consumers make reservations in advance;104
• Typical consumers enjoy a mental challenge, shop around for
entertainment activities, and select an escape room game after some
deliberation;105 and
• Because an escape room game involves 8-12 people, and 85% of Applicant’s
business involves groups of 5 or more people, selecting a game room event
requires planning and coordination.106
However, escape room game services are available to all consumers of all ages,
including consumers who are looking for something different to do without regard to
the source of those services. In this regard, we note that Applicant characterized its
class of purchasers as “any age group from age 9 and up.”107 Board precedent requires
the decision to be based “on the least sophisticated potential purchasers.” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1165
(Fed. Cir. 2014) (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d
1584, 1600 (TTAB 2011), judgment set aside on other grounds, 2014 WL 343267

103 Cherry Testimony Decl. ¶13 (34 TTABVUE 6); see also French, S. “The Unbelievably
Lucrative Business of Escape Rooms,” (MarketWatch.com) (July 21, 2015) (23 TTABVUE
125) (“Most games cost $25 to $30 per person for a one-hour game, and typically allow 10-12
players at a time.”).
104 Id. at ¶13 (34 TTABVUE 6).
105 Id. at ¶14 (34 TTABVUE 6).
106 Id.
107 Applicant’s response to interrogatory No. 6 (33 TTABVUE 18).
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(TTAB 2014)). In any event, even consumers who exercise a high degree of consumer
care “are not immune from source confusion where similar marks are used in
connection with related services.” Stone Lion Capital, 110 USPQ2d at 1165 (citing In
re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)).
The conditions under which sales are made is a neutral factor.
G. Applicant has the right to exclude others in its trading area.
Applicant contends that even if Opposer proves that it has priority and that there
is a likelihood of confusion, because Applicant has been using its marks in Anne
Arundel County, Maryland, before Opposer filed its applications, Applicant has
superior common law rights in its trading area.108 As indicated in the analysis of the
channels of trade, because Applicant is seeking a geographically unrestricted
registration, the issue of whether Applicant has superior common law rights in its
trading area is not at issue in this proceeding. Board proceedings are determined
independent of the actual geographic scope of use. See Giant Food, Inc. v. Nation’s
Foodservice, Inc., 218 USPQ at 393; Panda Travel Inc. v. Resort Option Enters. Inc.,
94 USPQ2d at 1796.
H. Balancing the factors.
Because the marks are similar, the services are identical and are presumed to be
offered in the same channels of trade to the same classes of consumers, we find that
Applicant’s marks MISSION ESCAPE and MISSION ESCAPE ROOMS both for
“conducting live entertainment in the nature of games featuring room escape,

108 Applicant’s Brief, p. 29 (39 TTABVUE 30).
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puzzles, and team strategy” is likely to cause confusion with Opposer’s previously
used mark MISSION ESCAPE GAMES for escape room game services.
Decision: The opposition is sustained and registration of Applicant’s applied-for
marks is refused.