Hasbro, Inc.v.Braintrust Games, Inc.

Trademark Trial and Appeal Board

Aug 24, 2009

No. 91169603 (T.T.A.B. Aug. 24, 2009)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB Mailed: August 24, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

Hasbro, Inc.

v.

Braintrust Games, Inc.
_______

Opposition No. 91169603
to Application No. 78448790
filed July 9, 2004
_______

Kim J. Landsman of Patterson Belknap Webb & Tyler LLP for
opposer.

Julie C. Jennings of Senniger Powers, LLP, for applicant.
_______

Before Walters, Drost, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Applicant seeks registration of the mark NO FRIGGIN
CLUE (in standard characters) for
Computer telecommunication software for use in
accessing global computer networks for the purpose
of playing games; video game software; video game
cassettes; video game discs; video game machines
for use with televisions; computer software
featuring trivia and knowledge-based games

in International Class 9, and for

Entertainment services, namely, providing online
computer games; providing games that may be
downloaded from a global computer network; online
betting services,

Opposition No. 91169603

2
in International Class 41.1
Opposer Hasbro, Inc. filed an opposition to
registration. By its amended notice of opposition, opposer
alleges priority and a likelihood of confusion with its
previously used CLUE mark and the marks in five trademark
registrations all comprising the term CLUE. Trademark Act
§ 2(d); 15 U.S.C. § 1052(d). Opposer also alleges that
registration of applicant’s mark would be “likely to dilute
the distinctive quality of Opposer’s famous mark,” Trademark
Act § 43(c); 15 U.S.C. § 1125(c), and that registration is
“contrary to the provisions of [Trademark Act § 2(a);] 15
U.S.C. § 1052(a).”2 Finally, opposer alleges that
registration is barred by an allegedly fraudulent statement
made during prosecution of the subject application.3
By its answer, applicant denied the salient allegations
of the notice of opposition.
We sustain the opposition.

1 Alleging a bona fide intent to use the mark in commerce
pursuant to Trademark Act § 44(e); 15 U.S.C. § 1126(e) (based on
Canadian Reg. No. TMA643,831), and claiming priority as of May 6,
2004, pursuant to Trademark Act § 44(d); 15 U.S.C. § 1126(d).
2 Opposer did not discuss in its brief its allegations under
Trademark Act § 2(a), and we accordingly consider this claim
abandoned.
3 Specifically, opposer alleges that applicant fraudulently
informed the USPTO that it had “a bona fide and effective
commercial establishment in Canada, as applicant operates a
business office and engages employees in Canada.” Response to
Office Action at 2 (Aug. 11, 2005).
Opposition No. 91169603

3
I. Record
Pursuant to Trademark Rule 2.122(b), the record in this
case includes the pleadings and the file of applicant’s
subject application. In addition, the record includes the
following items:
• Testimonial deposition of Matthew Collins, Vice-
President of U.S. Marketing for opposer;

• Testimonial deposition of Rachel Hoagland, Senior
Director of Digital Media and Gaming for opposer;

• Opposer’s notice of reliance, filed July 23, 2008,
including opposer’s registrations, dictionary
definitions, applicant’s responses to interrogatories,
and excerpts from the discovery depositions of
Christopher Wright and Scott McKenna;

• Testimonial deposition of Christopher Wright, President
of defendant;

• Testimonial deposition of Scott McKenna, Vice-President
of defendant;

• Defendant’s notice of reliance, filed September 23,
2008, including opposer’s responses to interrogatories,
documents produced by opposer, excerpts from the
discovery deposition of Matthew Collins, applicant’s
Canadian Registration No. TMA643,831, seven third party
applications and registrations incorporating the word
CLUE, dictionary definitions, and excerpts from the
discovery depositions of Christopher Wright and Scott
McKenna introduced to provide context to the excerpts
introduced by opposer.

Among other items submitted with opposer’s notice of
reliance were title and status copies, prepared by the
USPTO, of the following trademark registrations:4

4 With respect to each listed registration, appropriate filings
have been made under Trademark Act §§ 8, 9, and 15.
Opposition No. 91169603

4
Reg. No. Mark Goods/class Reg. Date
0526059 CLUE Equipment for use in playing board
game. Int’l Class 28
Jun. 6, 1950
16444885 CLUE THE CLASSIC DETECTIVE GAME
and board design

Board games. Int’l Class 28 May 23, 1989
1915192 CLUE Computer game software and video
game software. Int’l Class 28
Aug. 29, 1995
2044400 CLUE Interactive mystery storybooks. Int’l
Class 16
Mar. 11, 1997

II. Analysis
A. Standing and Priority
Opposer made four of its pleaded registrations of
record, establishing its standing to oppose registration of
applicant’s mark. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton Indus.,
Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185
(CCPA 1982).
Moreover, because opposer’s pleaded registrations are
of record, priority is not an issue with respect to
opposer’s likelihood of confusion claims. King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).

Opposer also submitted a title and status copy of pleaded
Registration No. 2093295, of the mark CLUE for “entertainment
services in the nature of live theater productions.” However,
this registration was cancelled and expired on June 6, 2009,
pursuant to Trademark Act §§ 8 and 9, and we accordingly give it
no further consideration.
5 Registered pursuant to Trademark Act § 2(f). Registrant has
disclaimed the exclusive right to use “detective game” and “the
overall shape of the game board apart from the mark as shown.”
Opposition No. 91169603

5
B. Likelihood of Confusion
Our determination under Trademark Act § 2(d) is based
on an analysis of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E.I. du Pont de Nemours and Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm Bay
Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003); In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997). In considering the evidence
of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re
Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
1. The Fame of the Prior Mark – Sales,
Advertising, Length of Use

We begin our likelihood of confusion analysis with the
fifth du Pont factor, which requires us to consider evidence
of the fame of opposer’s CLUE marks. Fame, when
established, is entitled to great weight in a likelihood of
confusion analysis. See Bose Corp. v. QSC Audio Products
Opposition No. 91169603

6
Inc., 293 F.3d 1367, 63 USPQ2d 1303 (Fed. Cir. 2002); Recot
Inc. v. Becton, 214 F.3d 1322, 54 F.2d 1894 (Fed. Cir.
2000); Kenner Parker Toys, Inc. v. Rose Art Indus., Inc.,
963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992).
Fame of an opposer’s mark or marks, if it
exists, plays a “dominant role in the process of
balancing the DuPont factors,” Recot, 214 F.3d
at 1327, 54 USPQ2d at 1456, and “[f]amous marks
thus enjoy a wide latitude of legal protection.”
Id. This is true as famous marks are more
likely to be remembered and associated in the
public mind than a weaker mark, and are thus
more attractive as targets for would-be
copyists. Id. Indeed, “[a] strong mark … casts
a long shadow which competitors must avoid.”
Kenner Parker Toys, 963 F.2d at 353, 22 USPQ2d
at 1456. A famous mark is one “with extensive
public recognition and renown.” Id.

Bose Corp., 63 USPQ2d at 1305.
Opposer makes a number of arguments bearing on the fame
of its CLUE brand, including its history and length of use,
the marketing of CLUE-branded products, and the success of
the brand in the marketplace. See Opp. Br. at 2-10.
Opposer’s “classic” CLUE product is a board game in
which the players compete to solve the mystery of a murder
committed by one of six suspects, in one of nine rooms, with
one of six weapons. The game was invented in Britain in
1948 by Anthony Pratt, and was first licensed to be sold in
the United States by opposer’s predecessor in 1949. In the
Opposition No. 91169603

7
ensuing sixty years, opposer has sold a substantial number
of units of its classic game.6 Collins Test. at 9.
In addition to the classic game, opposer and its
predecessors have published or licensed a number of
variations of the game aimed at specific audiences, such as
the HARRY POTTER EDITION, the SCOOBY-DOO! WHERE ARE YOU?
EDITION, THE HAUNTED MANSION EDITION, THE SIMPSONS EDITION,
CLUE JR. THE CASE OF THE MISSING CHOCOLATE CAKE, and CLUE
FX. Id. at 24-31. Opposer provided its sales figures for
the years 2000-2005 for its various CLUE games, which were
again quite substantial. Collins Test. 46, exh. 17. In
addition to traditional board games, CLUE games have been
published in a number of electronic formats for a variety of
computer and electronic game platforms since as early as
1982. Id. at 9. A series of 18 mystery books based on the
game concept was published by Scholastic Books, and both a
motion picture and a Broadway musical based on the game have
been produced under license from opposer or its
predecessors. Id. at 9-10. Opposer has also licensed its
CLUE mark for use on ancillary goods such as greeting cards,
lottery tickets, key chains, clothing, casino games, and
card games. Collins Test. at 38-39.

6 Opposer’s sales and advertising figures were submitted under
seal pursuant to a protective order, so we will refer to them
only in general terms.
Opposition No. 91169603

8
Opposer has also invested considerable resources into
promotion of its CLUE brand. Mr. Collins testified that
that in the period 2000-2008, opposer spent substantial
amounts on television advertising and other promotions.
Collins Test. at 50-52. Opposer’s efforts have resulted in
recognition in national media such as the New York Times,
and various other newspapers and magazines, particularly in
recognition of the fiftieth anniversary of the game in 1999.
Collins Test. at 54-57.7
In response to opposer’s evidence of sales and
advertising levels, applicant points out that “[o]pposer has
not introduced any evidence to explain the significance of
its sales and advertising figures, or any evidence to show
how its sales and advertising figures measure up to its
competitor’s figures.” App. Br. at 7. Applicant’s point is
valid. It is the burden of the party offering evidence of
fame to provide a meaningful context for its figures, such
as evidence of the market share for the goods sold under the
mark. As the Federal Circuit has stated, “[r]aw numbers of
product sales and advertising expenses may have sufficed in
the past to prove fame of a mark, but raw numbers alone in
today’s world may be misleading.... Consequently, some

7 In support of its argument that its CLUE marks are famous,
opposer also relies on certain other documents submitted under
seal, and related testimony. See Collins Test. exh. 21-23.
Applicant objects to consideration of this evidence for reasons
Opposition No. 91169603

9
context in which to place raw statistics is reasonable.”
Bose Corp. v. QSC Audio Prods., 293 F.3d 1367, 63 USPQ2d
1303, 1309 (Fed. Cir. 2002).
In view of the extreme deference that is accorded to a
famous mark in terms of the wide latitude of legal
protection it receives, and the dominant role fame plays in
the likelihood of confusion analysis, it is the duty of a
plaintiff asserting that its marks are famous to clearly
prove it. Leading Jewelers Guild Inc. v. LJOW Holdings LLC,
82 USPQ2d 1901, 1904 (TTAB 2007). We cannot say that
opposer has met its burden on this record.8 Nonetheless, we
would clearly be mistaken in dismissing out of hand
opposer’s long use of its CLUE marks, its diversification of
the brand on a variety of game-related and other products,
and opposer’s very substantial sales and advertising figures
(albeit without market context).

set out in its brief. App. Br. at 7. We sustain applicant’s
objections; this material has not been considered.
8 Opposer points out that in two previous, non-precedential
decisions (in 1999 and 2002), the Board found opposer’s CLUE mark
to be famous. Reply Br. at 5. Fame is a factual matter which
must be established on the record in each proceeding. Whether
the record in opposer’s previous proceedings was sufficient to
establish its fame eight and ten years ago is not relevant to
whether the record in this proceeding is sufficient to establish
fame now. “[I]t is well settled that a decision in a prior case
is incompetent as proof of any fact recited therein as against
one who was not a party thereto.” Chicken Delight, Inc. v.
Delight Wholesale Co., 193 USPQ 175, 177 (TTAB 1976), citing Aloe
Creme Labs., Inc. v. Bonne Bell, Inc., 168 USPQ 246 (TTAB, 1970).
Moreover, the record in this case is likely different than that
in the prior proceedings. We note in particular that we have
sustained applicant’s objection in this case to significant
evidence proffered by opposer on this issue. See supra note 7.
Opposition No. 91169603

10
We conclude that while we do not find opposer’s mark to
be famous on this record, it nonetheless is a well-known and
strong mark, and enjoys considerable renown, a factor which
significantly supports a finding of likelihood of confusion,
and entitles the mark to an enhanced scope of protection.
2. The Similarity or Dissimilarity and Nature of
the Goods or Services

The goods in the subject application are set out as
follows:
Computer telecommunication software for use in
accessing global computer networks for the purpose
of playing games; video game software; video game
cassettes; video game discs; video game machines
for use with televisions; computer software
featuring trivia and knowledge-based games

in International Class 9, and for
Entertainment services, namely, providing online
computer games; providing games that may be
downloaded from a global computer network; online
betting services,

in International Class 41.
The goods in the cited registrations are “interactive
mystery storybooks,” in International Class 16 (‘400
Registration); equipment for use in playing [a] board game
(‘059 Registration); board games (‘488 Registration); and
computer game software and video game software (‘192
Registration), in International Class 28.
The subject application is based on applicant’s stated
intent to use the mark on the goods and services identified
in the application. Nonetheless, it is apparent that
Opposition No. 91169603

11
applicant is currently using the mark in connection with an
“online trivia game. Applicant’s online trivia game is a
real-time, interactive game that allows players to answer
multiple-choice trivia questions in a number of subject
categories. Players use their personal knowledge or guess
at the correct answers.” App. Br. at 3, citing Wright Test.
at 17, 63. Applicant’s game is available on applicant’s
website. Wright Test. at 12-14. Applicant argues that its
trivia and knowledge-based games “are unrelated to opposer’s
board games and related goods.” App. Br. at 19.
Contrary to applicant’s contention, we find that
applicant’s goods are in part identical with and otherwise
related to those identified in the cited registrations.
Applicant’s “video game software” and “computer software
featuring trivia and knowledge-based games” are legally
identical to the “computer game software and video game
software” identified in the ‘192 Registration.
Despite the wording of the subject application and
opposer’s registrations, applicant argues that its games are
trivia-related, and that opposer’s CLUE games are not trivia
games. App. Br. at 19-20. While factually correct,
applicant’s analysis misses the mark:
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
Opposition No. 91169603

12
channels of trade or the class of purchasers to
which sales of the goods are directed.

Octocom Sys. Inc. v. Houston Computers Servs. Inc., 918 F2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)(citations
omitted). Likewise, an applicant may not restrict the scope
of the goods covered in the cited registration by argument
or extrinsic evidence. In re Bercut-Vandervoort & Co., 229
USPQ 763, 764 (TTAB 1986). In other words, when we are
considering a claim of likelihood of confusion as between an
application and a cited registration, our analysis is
limited to the goods or services as set out in the
respective application and registrations.9 Evidence showing
the more specific actual nature of the parties’ goods or
services will not be considered to limit the language of the
application or registration.
In this case, while applicant’s “computer software” is
limited to that “featuring trivia and knowledge-based
games,” opposer’s “computer game software” (‘192
Registration) is not limited by subject matter. We must

9 Applicant’s argument to the contrary, App. Br. at 20, relying
on du Pont (requiring consideration of “the similarity or
dissimilarity and nature of the goods or services as described in
an application or registration or in connection with which a
prior mark is in use” (emphasis added)), is erroneous.
Consideration of the goods or services “in connection with which
a prior mark is in use” only applies to the opposer’s goods or
services, and then only to the extent the opposer is relying on
common-law rights, and not a registration. While opposer here
has provided evidence of its actual use of the pleaded marks on a
variety of goods, we find it unnecessary to consider such common-
law rights because opposer’s registrations are sufficient to
resolve this matter.
Opposition No. 91169603

13
thus consider the cited registration to cover all computer
game software, and not merely the specific kinds of software
that opposer currently markets under its registered CLUE
trademark. Applicant’s “computer game software featuring
trivia and knowledge-based games” is thus encompassed by
opposer’s more general “computer game software,” and to that
extent, they are legally identical. As noted, applicant’s
“video game software” is not limited by subject matter and
by the same analysis is therefore identical to the “video
game software” recited in the ‘192 Registration.
While we focus here primarily on the identical goods in
the subject application and the ‘192 Registration, we also
find that – at a minimum – applicant’s “video game cassettes
[and] video game disks” are related to the goods in
opposer’s ‘192 Registration because they could feature
identical video games. Further, opposer’s “equipment for
use in playing [a] board game” (‘059 Registration) and
“board games” (‘488 Registration) are both registered
without limitation to a particular subject matter or a type
of game. Such goods thus encompass “trivia and knowledge-
based” board games, which are clearly related to applicant’s
similar computer- or electronic-based games. Finally, for
the same reasons, we find that applicant’s International
Class 41 services “providing online computer games [and]
providing games that may be downloaded from a global
Opposition No. 91169603

14
computer network” are closely related to opposer’s computer
game software, and to opposer’s board games.
We thus conclude that applicant’s goods are in part
identical to and in part closely related to the goods set
out in opposer’s pleaded registrations, a factor which
strongly supports a finding of a likelihood of confusion.
3. Similarity or Dissimilarity of Trade
Channels.

Applicant argues that its channels of trade are
distinct from those of opposer. App. Br. at 21-22. We
disagree. As with our analysis of the parties’ goods and
services, we are not concerned here with the actual channels
of trade of applicant and opposer; rather, we must consider
the normal channels of trade for the goods and services
identified in the subject application and the pleaded
registrations.
As previously noted, the goods in the subject
application are in part identical to those in opposer’s
pleaded ‘192 Registration. Because the goods are identical,
we must assume that the purchasers and channels of trade for
such goods are also identical. Genesco Inc. v. Martz, 66
USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical
and in-part related nature of the parties’ goods, and the
lack of any restrictions in the identifications thereof as
to trade channels and purchasers, these clothing items could
be offered and sold to the same classes of purchasers
Opposition No. 91169603

15
through the same channels of trade”); In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the
goods are legally identical, they must be presumed to travel
in the same channels of trade, and be sold to the same class
of purchasers”).
This factor further supports a finding of a likelihood
of confusion.
4. The Similarity or Dissimilarity of the Marks
In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 73
USPQ2d at 1692. “[T]he test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression so that
confusion as to the source of the goods offered under the
respective marks is likely to result.” H.D. Lee Co. v.
Maidenform Inc., 87 USPQ2d 1715, 1727 (TTAB 2008).
In this case, while analyzing the parties’ marks, we
keep in mind that when marks are used on identical goods,
the marks do not have to be as similar, to support a
conclusion that confusion among consumers is likely, as they
would have to be if the goods were different. See Century
21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874,
23 USPQ2d 1698, 1700-01 (Fed. Cir. 1992) (“When marks would
Opposition No. 91169603

16
appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely
confusion declines.”).
As noted above, opposer has submitted evidence of its
ownership of four registrations. The mark in the ‘059,
‘192, and ‘400 Registrations is CLUE, in “typed” characters,
i.e. without regard to any particular stylization.10 The
word “CLUE” thus comprises the entirety of three of
opposer’s pleaded registrations.
On the other hand, the mark in the subject application
is NO FRIGGIN CLUE, likewise without regard to any
particular stylization. Applicant argues that its mark is
“a phrase from popular culture, and is thus distinct from
[o]pposer’s single word mark.” App. Br. at 15. In
particular, applicant contends that its mark
means emphatically “I don’t know.” The word
“frigging” means “used for emphasis, esp. to
express anger, annoyance, contempt, or surprise.”
The colloquial phrase “not to have a clue” is
defined as, “to have no idea, not to know.” Thus
Applicant’s mark NO FRIGGIN CLUE means “I don’t
know,” with emphasis.

Id. (citations omitted). Applicant argues that NO FRIGGIN
CLUE and CLUE “have opposite connotations, which must serve

10 While the mark in the ‘488 Registration prominently includes
the term CLUE, we focus here on opposer’s other three
registrations, as they consist of the typed mark CLUE without any
additional matter, and are thus most similar to applicant’s mark.

Opposition No. 91169603

17
to distinguish them in the minds of consumers.” App. Br. at
16.
In the context of the goods at issue here, the term
CLUE bears the same connotation, i.e., “that which points
the way, or puts one on the track of a discovery; a key.”
App. Not. of Reliance, exh. M. With respect to games in
general and both applicant’s and opposer’s games in
particular, a “clue” is something which points the way to
the correct answer. In the case of applicant’s game, that
would be the correct answer to the trivia question at hand.
In the case of opposer’s games, a “clue” is an aid to
solving the mystery at hand. In other words, the term CLUE
and its concept are central to both of the parties’ goods.
Here, while both parties’ use of the term CLUE is somewhat
suggestive, both marks use the term to suggest the same
thing.
We agree with applicant that its mark is a phrase which
should not be dissected, and we accordingly consider
applicant’s mark as a whole. Nonetheless, it is obvious
that applicant’s mark incorporates opposer’s previously-
registered and well-known CLUE mark in its entirety.
Despite the fact that applicant’s mark has an overall
meaning that is somewhat different than opposer’s, we think
that this similarity would not be lost on consumers viewing
the respective marks on identical goods (as we must construe
Opposition No. 91169603

18
them to be in this case), particularly in light of the
renown of opposer’s mark. While not an especially strong
similarity, we thus find that applicant’s mark and opposer’s
share some similarity in their appearance and sound. See In
re Mack, 197 USPQ 755 (TTAB 1977) (“It is ... well settled
that similarity in any one of the elements of sound,
appearance or meaning is sufficient to indicate likelihood
of confusion.”).
While the marks are clearly not identical, we find that
applicant’s mark and opposer’s mark are similar in
appearance and sound to the extent that they both comprise
the term CLUE. This factor lends some support to a finding
of likelihood of confusion.
5. Third Party Use or Registration of CLUE Marks
Applicant points to the registration and use of CLUE-
formative marks by third parties, claiming that this
evidence indicates that applicant’s mark “can, and does, co-
exist with Opposer’s mark without any likelihood of
confusion.” App. Br. at 24. Applicant admits that this
argument is “perhaps not given much weight,” id., and we
agree that it is entitled to very little weight indeed. In
support of this point, applicant points to evidence
submitted with its motion for summary judgment and several
Opposition No. 91169603

19
third party applications and registrations.11 Applicant’s
summary judgment evidence is not part of the record at
trial, see Levi Strauss & Co. v. R. Josephs Sportswear Inc.,
28 USPQ2d 1464, 1465 n.2 (TTAB 1993)(material submitted on
summary judgment not part of trial record); Order (denying
summary judgment) at 11, n.3 (May 6, 2008).
Applicant introduced evidence of the seven third-party
registrations and applications including the term CLUE.
App. Not. of Reliance Exh. E-K. Of these, two registrations
have been cancelled and two applications abandoned, leaving
three registrations, two of which are owned by a common
entity. Applicant argues that there are no instances of
confusion with respect to these marks. App. Br. at 23-24.
At the outset, we note that two of the three active
registrations12 are for services different than the goods
and services at issue in this case, namely a television game
show and “electronic bulletin boards and chat rooms for
transmission of messages ... concerning game shows.”
While the remaining registration13 is for computer and
electronic game software and equipment in various formats,
its existence provides little support for applicant’s case.

11 Applicant also relies on evidence submitted under seal in
support of its argument. App. Not. of Reliance, exh. B. Opposer
objects to consideration of this evidence. Opp. Br. at 30-31.
We agree with opposer that this evidence is inadmissible.
12 Reg. Nos. 2523363 and 2537222, both for the mark CLUED IN.
13 Reg. No. 2721726 of the mark BLUE’S CLUES.
Opposition No. 91169603

20
Third-party registrations are entitled to very little weight
on the question of likelihood of confusion. Such
registrations do not prove that the registered marks are in
use or the extent of any such use in the marketplace. Even
the registration of arguably confusing marks does not give
applicant the right to register another confusing mark. AMF
Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403; 177 USPQ
268, 269 (CCPA 1973); Nat’l Aeronautics and Space Admin. v.
Record Chem. Co. Inc., 185 USPQ 563, 567 (TTAB 1975).
While we recognize the existence of these
registrations, we must conclude that they do not
significantly help applicant’s case.
6. Lack of Actual Confusion
Finally, applicant argues that it has been using its
mark in connection with its online trivia game “since
approximately July 2004,” and that there have been no
reported instances of actual confusion. App. Br. at 25.
Applicant argues that “[t]his factor should weigh slightly
against any likelihood of confusion.” Id.
The issue before us is the likelihood of confusion, not
actual confusion. Herbko Int’l Inc. v. Kappa Books Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)(actual
confusion not required). While evidence of actual confusion
is highly probative of this issue, its absence is not,
unless it is accompanied by evidence demonstrating that in
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21
light of the parties’ actual business activities, confusion,
if likely, would have occurred. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir.
2000).
We agree with opposer that on this record, evidence of
applicant’s actual use of its mark is minimal. Reply Br. at
14. Applicant admitted that it has fewer than 1000
registered users for its downloadable trivia game. Wright
Test. at 51-52. While applicant has engaged in some online
advertising14 and promotion in conjunction with a different
product, the impact of such activities on relevant consumers
is uncertain, at best.
We are not able to conclude from this evidence that
there has been a significant actual market interface between
opposer’s products and applicant’s such that confusion – if
likely – would have already occurred. Under the facts of
this case, we conclude that the absence of instances of
actual confusion is entitled to no weight in assessing
whether confusion is likely. We thus find that this factor
is neutral in our analysis.
C. Dilution and Fraud
In light of our finding on the issue of likelihood of

14 Applicant has placed advertisements with Google.com, but
applicant was not able to explain “how it all works.” Wright
Test. at 50. We cannot tell from the record how often
applicant’s advertisement was displayed by Google or how many
potential (U.S.) customers were exposed to it.
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22
confusion, we find it unnecessary to reach the issues of
dilution and fraud.
III. Conclusion
We have carefully considered all of the evidence
pertaining to the relevant du Pont factors, as well as all
of the parties’ arguments with respect thereto, including
any evidence and arguments not specifically discussed in
this opinion.
We have found that applicant’s goods and services are
partly identical and otherwise related to the goods set out
in opposer’s pleaded registrations, and that they share
common channels of trade and prospective purchasers. We
have also found the marks at issue to be somewhat, although
not strongly, similar. We are further mindful of opposer’s
long use of its well-known mark and the substantial sales
and advertising figures opposer has made of record. While
such use does not rise to the level of fame (on this
record), we nonetheless find it to be a substantial factor
in opposer’s favor.
On balance, we conclude that applicant’s mark, used on
or in connection with its identified goods and services,
gives rise to a likelihood of confusion with opposer’s
previously-registered CLUE marks. This is admittedly a
close case. Nonetheless, to the extent we have any doubt,
we must resolve that doubt in favor of opposer, the prior
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23
registrant. See Hard Rock Cafe Int’l (USA) Inc. v. Elsea,
56 USPQ2d 1504, 1514 (TTAB 2000); W.R. Grace & Co. v.
Herbert J. Meyer Indus., Inc., 190 USPQ 308, 311 (TTAB
1976).
Decision: The opposition is SUSTAINED, and registration
to applicant is refused.