Tuesday, October 22, 2013

Test Your TTAB Judge-Ability: Is "KNOW YOUR SCORE" Merely Descriptive of Credit Reporting Services?

Consumerinfo.com applied to register the mark KNOW YOUR SCORE for credit reporting services, but Fair Issac opposed, claiming mere descriptiveness under Section 2(e)(1). Opposer asserted that many third parties use the phrase "know your score" or similar phrases when referring to such services. How do you think this came out? Would you like to see the evidence first before giving your opinion? Fair Isaac Corporation v. ConsumerInfo.com, Inc., Opposition No. 91178303 (September 30, 2013) [not precedential].

The parties got off on the wrong foot by submitting certain discovery depositions on CD-ROM. As of August 31, 2007, CD-ROMS are no longer acceptable by the Board [nor are 8-track tapes or cassettes - ed.]. The Board therefore refused to consider that testimony, nor any related exhibits, unless they had also been submitted on paper.

Opposer submitted dictionary definitions of the constituent words, examples of descriptive use of the phrase by applicant, and third-party use of "know your score" alone or with additional wording. Various articles from the Lexis/Nexis database showed common use of the term "score" interchangeably with "credit score."

Applicant cried, "It's not fair, Isaac." It urged that the phrase is at most suggestive and that its mark will not foreclose competitors from descriptive use of a necessary phrase, since third-parties use a variety of phrases in discussing credit scores and services.

The Board found that "score" and "credit score" are used interchangeably in the credit reporting and financial information industries, and that the phrase "know your score" has been and is routinely used to describe "a consumer's need to know what their credit score is, its effect and how to obtain it." No mental gymnastics are required to discern the information conveyed by the mark regarding applicant's services: namely, "that they enable a consumer to know his or her credit score or, as applicant puts it, it [the mark] allows relevant consumers to "know your score."

Applicant maintained that, by widely promoting the mark at sports venues, it created a double entendre that challenges the consumer to use a mental process to "extrapolate a connection" with the services. The Board, however, found nothing in the record to establish that consumers would recognize this sports meaning from the mark itself.

Although applicant contended that variations like "know the score" are irrelevant, the Board noted that applicant sent cease-and-desist letters to third-parties who used variants of the applied-for mark.

Applicant alternatively claimed that its mark has acquired distinctiveness, based on extensive use and promotion for more than five years, and on its ownership of a registration for the mark KNOW YOUR SCORE for "providing credit report information for perspective [sic] first mortgagers." However, in applicant's advertising, the mark FreeCreditReport.com is featured, and so it is unclear whether KNOW YOUR SCORE is viewed as a source indicator. Nor did applicant provide any information regarding market share, media recognition of the mark, and other contextual information that would enable the Board to assess the Section 2(f) claim.

As to applicant's claim of five years of continuous use, the evidence showed use of the same or a similar phrase by numerous third parties. Although absolute exclusivity is not required, applicant's use was not "substantially exclusive," and therefore applicant may not rely on the five-year claim under Section 2(f);

Finally, as to applicant's prior registration, the services are different from and narrower than those of the application at issue. In the registration, the information is provided to "perspective [sic] first mortgagers," while those in the subject application are identified broadly as "credit reporting services; credit information provided by electronic means" and "providing information in the financial and credit fields."

Therefore, the Board concluded that applicant's ownership of the prior registration did not serve as a basis for the claim of acquired distinctiveness here.

And so the Board sustained the opposition.

Read comments and post your comment here.

TTABlog note: In its prior registration, did applicant mean to say "prospective" first mortgagers, or "perspiring?"

Text Copyright John L. Welch 2013.


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