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It’s Cards vs. Crabs in a Game of Cards

Many are familiar with Cards Against Humanity. The premise of this popular party game is for one player to draw a black card with a question or a “fill-in-the-blank” prompt, and the fellow players then respond using answers provided on white cards in their hand. The player needing a response then picks the funniest response and awards a point.

Vampire Squid applied to register a stylized mark for Crabs Adjust Humidity, but Cards Against Humanity opposed the application on the grounds of brand confusion, dilution and a false sense of connection.

Vampire Squid had initially created their cards a few years ago to compliment the Cards Against Humanity game and contacted Cards Against Humanity to see if the company was okay with the concept. The CEO responded, with a short email request to change the logo, but indicated that the packaging was fine. Vampire Squid claims that this is enough of consent to market and register the mark. Vampire Squid cards have been on the market for two years now.

Cards Against Humanity claims that it gave Vampire Squid limited permission to use the name for a limited run of cards and a one-time-only expansion pack to be sold online with a specific design.

Trademark Trial and Appeal Board rules

The Trademark Trial and Appeal Board (TTAB) recently addressed the dispute, ruling in favor of Cards Against Humanity. The ruling is based on the fact that “acquiescence is a type of estoppel that is based upon the plaintiff’s conduct that expressly or by clear implication consents to, encourages or furthers the activities of the defendant, that is not objected to.”

A successful claim for acquiescence requires the defendant to show that:

  • The plaintiff actively stated that it would not assert a claim;
  • The gap between the initial approval and filing a claim was too long; and
  • The delay led to undue prejudice toward the defendant.

The court also ruled on the issue of brand confusion. Here again, it sided with Cards Against Humanity.

What can be learned here

The case is useful for illustrating that a general approval by a trademark holder may not amount to “acquiescence” under the law. Those with questions about a possible acquiescence defense should speak with an experienced trademark law attorney.

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