Oakwon Demographics LLCv.Mission Escape Rooms LLC

Trademark Trial and Appeal Board

Aug 3, 2017

No. 91227852 (T.T.A.B. Aug. 3, 2017)

KWM Mailed: August 3, 2017

Opposition No. 91227852
Oakwon Demographics LLC

v.
Mission Escape Rooms LLC

Before Quinn, Wolfson, and Shaw,
Administrative Trademark Judges.

By the Board:
Now before the Board is Opposer’s motion (filed March 27, 2017) for summary
judgment on Opposer’s sole claim of likelihood of confusion. The motion is fully
briefed.
Background
Applicant seeks to register the marks MISSION ESCAPE and MISSION ESCAPE
ROOMS, in standard character form, for “conducting live entertainment in the nature
of games featuring room escape, puzzles and team strategy” in International Class
41.1 In its consolidated notice of opposition, Opposer alleges likelihood of confusion
based on common law rights accruing from its prior use of, as well as current

1 Application Serial Nos. 86815642 and 86815955, filed on November 10, 2015 and November
11, 2015, respectively, and disclaiming “ESCAPE” and “ESCAPE ROOMS,” respectively, both
applications based on an assertion of a bona fide intent to use the mark in commerce under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91227852

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applications for registration of, the marks MISSION and MISSION ESCAPE GAMES
for “arranging and conducting entertainment through interactive, puzzle adventure
games and challenges, namely, featuring room escape, problem solving, teamwork
and strategy and social entertainment events” in International Class 41 since at least
as early as December 16, 2014 and April 2014, respectively.2 In its answer, Applicant
denies the salient allegations in the consolidated notice of opposition and asserts
various affirmative defenses.
Opposer’s Motion for Summary Judgment
In support of its motion, Opposer maintains that it has used its MISSION and
MISSION ESCAPE GAMES marks (collectively, the “MISSION Marks”) since at
least as early as April 2014 in connection with entertainment services in the nature
of arranging and conducting room-escape games. Opposer’s brief at p. 2. Specifically,
Opposer claims it first hosted market-test games in connection with its MISSION
Marks at its Manhattan location around March through early April 2014; expanded
to a second location in Queens in November 2014; and from May 2014 through
October 2015, it sold over 37,000 tickets for its escape-room game services to
customers from at least forty-seven states. Id. at pp. 3-4. Opposer further alleges that
it has advertised its services in connection with its MISSION Marks on Yelp.com
since June 2015; on LivingSocial.com and Groupon.com since June 2014; on
Facebook, Instagram and Twitter since May 2014; on Open Loop New York charter

2 Application Serial Nos. 86941933 and 86921429, filed on March 16, 2016 and February 26,
2016, respectively, both in standard characters and based on use in commerce under Section
1(a) of the Trademark Act, 15 U.S.C. § 1051(b). Application Serial No. 86921429 includes a
disclaimer of “ESCAPE GAMES.”
Opposition No. 91227852

3
buses; through corporate team-building exercises; through promotional events with
movie production companies; on signage at its physical locations in Manhattan (since
March/April 2014) and Queens, New York (since November 2014); and through its
website at www.missionescapegames.com since May 2014. Id. at pp. 2-5. Opposer’s
services provided under its MISSION Marks allegedly have also been featured in
articles and reviews by Newsweek.com, ABC News Radio, and
RoomEscapeArtist.com. Id. at p. 5. Meanwhile, Opposer argues, the earliest dates
Applicant can rely on as its first use of its marks are its November 10 (MISSION
ESCAPE) and November 11 (MISSION ESCAPE ROOMS) 2015 filing dates,
especially in light of Applicant’s response to Opposer’s Interrogatory No. 1 that
Applicant first began publicizing its marks on December 7, 2015. Opposer’s brief at
pp. 13-14.
As evidence in support of its motion, Opposer has submitted the declaration of
David K. Chen (the “Chen Declaration”), co-founder of Opposer Oakwon
Demographics LLC d/b/a Mission Escape Games, which introduces and corroborates
the following exhibits, among others:
a) screen shots from Wayback Machine internet archive searches of
http://missionescapegames.com/ dated June 28, 2014 displaying the MISSION
ESCAPE GAMES mark in standard characters in connection with Opposer’s
services, and screen shots from the Wayback Machine dated December 16,
2014, January 12, 2015, May 10, 2015, and October 27, 2015 displaying the
MISSION ESCAPE GAMES design mark (depicted below) in connection with
Opposer’s services (Chen Dec. at Ex. 1);

Opposition No. 91227852

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b) screen shots from Opposer’s Facebook profile featuring photographs of its
MISSION ESCAPE GAMES design mark dated June 9, 2014 and September
8, 2014 (Chen Dec. at Ex. 3);

c) spreadsheets detailing online ticket sales between May 22, 2014 and October
30, 2014, featuring customer location and purchase date, that were generated
from Opposer’s business records maintained on its PayPal e-commerce
management system (Chen Dec. at Ex. 5);

d) spreadsheets detailing online ticket sales between October 31, 2014 through
April 30, 2015, featuring customer location, purchase date, and purchase
amount, that were generated from Opposer’s business records maintained on
its Stripe e-commerce management system (Chen Dec. at Ex. 6);

e) an unexecuted vendor agreement between Opposer and Twentieth Century
Fox Film Corporation dated November 17, 2014 (Chen Dec. at Ex. 7);

f) a screen shot of Opposer’s Facebook ads manager detailing amounts spent on
ad campaigns featuring Opposer’s MISSION Marks and services dated May
27, 2014, March 21, 2015, and October 8-9, 2015 (Chen Dec. at Ex. 9);

g) a purchase order and advertising agreement between Yelp.com and Opposer
regarding advertising campaigns featuring Opposer’s MISSION Marks and
services dated June 3, 2015 (Chen Dec. at Ex. 10);

h) reviews of Opposer’s services provided under its MISSION Marks by
RoomEscapeArtist.com dated October 8, 2014, November 11, 2014, December
7, 2014, March 27, 2015, October 13, 2015, and January 10, 2016 (Chen Dec.
at Ex. 12); and

i) an article on Newsweek.com entitled “The Art of the Escape Room” by Stuart
Miller, dated April 19, 2015, mentioning Opposer’s services provided in
connection with its MISSION Marks (Chen Dec. at Ex. 12).

Opposer has also submitted the Declaration of Michael F. Sarney, its attorney, which
includes a copy of Applicant’s responses to Opposer’s First Set of Interrogatories
(Sarney Dec. at Ex. A, Interrogatory No. 1).
Opposer further argues that the parties’ marks are nearly identical, especially in
light of the fact that MISSION is the common, dominant portion of the involved
Opposition No. 91227852

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marks, and both parties have disclaimed all other matter in the marks. Opposer’s
brief at pp. 10-12. Moreover, Opposer contends, the parties’ services are both based
upon escape-room games and are therefore identical or highly related, contributing
to a likelihood of confusion between the parties’ marks. Id. at pp. 12-13. Opposer also
argues that its pending applications have been suspended due to the examining
attorney’s refusal under Section 2(d) of the Trademark Act based on Applicant’s
involved applications.3 Id. at p. 7.
In response, Applicant argues that Opposer failed to establish by a preponderance
of the evidence that it has proprietary rights to the MISSION Marks, citing a host of
objections to Opposer’s exhibits to the Chen Declaration.4 Applicant’s brief at pp. 7-
12. In particular, with the exception of Exhibit 2, Applicant objects to each and every
exhibit as lacking a sufficient foundation for the admissibility of evidence and as
inadmissible hearsay. Id. Exhibit 2 includes copies of online news articles which
discuss the popularity of room-escape games in the United States; Applicant argues
that Exhibit 2 “does not support the Opposer’s position in any way.” Id. at p. 9.
Applicant further argues that Exhibit 7 is entitled to only limited probative value
because it is not fully executed. Id. at p. 11. Moreover, Applicant argues, none of the
exhibits (with the exception of Exhibit 7) show that Oakwon Demographics LLC is
using the MISSION Marks, creating a factual dispute as to Opposer’s ownership and

3 Opposer filed copies of the Office Actions with its reply brief, as discussed more fully below.

4 Opposer would bear the burden of proving its claim by a preponderance of the evidence at
trial, but the “genuine issue of material fact” standard applies to motions for summary
judgment. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1822, n.6
(TTAB 2015).
Opposition No. 91227852

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standing as it relates to its marks; and that none of the exhibits demonstrate use of
MISSION apart from the MISSION ESCAPE GAMES or MISSION ESCAPE
GAMES and design marks. Id. at pp. 6-8. Accordingly, Applicant argues, Opposer
cannot prove standing and priority of use, and on this basis, Applicant requests that
the Board enter summary judgment sua sponte in favor of Applicant. Id. at pp. 5, 22.
Applicant further contends that Opposer failed to prove a likelihood of confusion
with respect to the parties’ involved marks, and Applicant conducts an analysis of
each of the factors listed in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (C.C.P.A. 1973). Applicant’s brief at pp. 12-22. In particular, Applicant
argues, inter alia, that the parties’ marks are not similar in connotation and
commercial impression because the word MISSION, the dominant portion of the
marks, as well as the word ESCAPE, are commonly used and therefore weak. Id. at
p. 16. While Applicant concedes that the parties’ descriptions of services are very
similar, it argues that Opposer’s evidence does not demonstrate exactly which
services it is offering in connection with its MISSION Marks. Id. at p. 17. Applicant
also argues that Opposer’s marks are only entitled to a narrow scope of protection in
light of third-party registrations and uses of MISSION-formative marks in connection
with similar services, contributing to a finding of no likelihood of confusion. Id. at p.
19.
In support of its argument, Applicant relies on the Declaration of Jason Cherry,
Applicant’s founder, regarding its use of its MISSION ESCAPE and MISSION
ESCAPE ROOMS marks and introduces evidence of the same. Applicant also
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includes the Declaration of Dominic J. Souza (the “Souza Declaration”), Applicant’s
attorney, which introduces evidence of third-party registrations and websites
demonstrating use of MISSION-formative marks in connection with purportedly
similar services, as well as a New York Department of State business entity record
for Mission: Escape Inc. indicating that the entity filing was made on July 19, 2016.
In reply, Opposer notes that Applicant has failed to produce any evidence that
creates a factual dispute as to whether Opposer has standing or priority and whether
summary judgment should be granted. Opposer’s reply at pp. 2-3. Specifically,
Applicant admits that Opposer’s applications for its MISSION Marks have been
suspended based on a potential likelihood of confusion with the involved applications
(see Applicant’s brief at p. 3), which, Opposer argues, is a basis for Opposer’s standing.
Id. at p. 3. Moreover, Opposer argues that Applicant’s objections to the evidence
included with the Chen Declaration, which prove Opposer’s prior use of its MISSION
Marks, are unwarranted. Opposer’s reply at pp. 5-6. Opposer further contends that
its use of the MISSION ESCAPE GAMES design mark supports its priority with
respect to the MISSION mark (in standard characters) alone, given that the term
MISSION is distinctly and prominently displayed in the design mark, separate and
apart from ESCAPE GAMES. Id. at p. 5. Opposer also notes that Applicant has
conceded that the parties’ applications cover nearly identical services. Id. at p. 8.
Finally, Opposer argues that Applicant’s evidence of third-party use and registrations
include overly broad TESS and Google search results, as well as references to use
Opposition No. 91227852

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outside of the United States, and is therefore entitled to little, if any, weight. Id. at
p. 10.
In support of its reply, Opposer includes the Declaration of Michael F. Sarney, its
attorney, which includes, inter alia, the prosecution history for its applications for the
MISSION Marks, together with the Office Actions citing Applicant’s involved
applications,5 as well as seventy-five Class 41 registrations that include escape games
or escape rooms in the description of services, and screen shots from Opposer’s
website.
Evidentiary Issues
After careful consideration of the parties’ arguments, Applicant’s objections to the
Chen Declaration and Exhibits 1, 3-6, and 8-13 thereto as lacking a sufficient
foundation and as inadmissible hearsay are overruled, inasmuch as Mr. Chen has
sufficient personal knowledge to authenticate the information contained therein,
and/or the documents qualify under the business records exception pursuant to Fed.
R. Evid. 803(6). See Trademark Rules 2.20 and 2.122(e); Safer, Inc. v. OMS
Investments, Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (document obtained from the
internet is admissible if it identifies the date it was accessed and its URL and may be
entitled to greater weight with corroborating testimony); 7-Eleven, Inc. v. Weschler,
83 USPQ2d 1715, 1717 n.2 (TTAB 2007) (materials made of record under Trademark
Rule 2.122(e) are not admissible for the truth of the matters contained therein, unless

5 Because the Office Actions should have been submitted with Opposer’s motion for summary
judgment, not its reply brief, we do not consider the Office Actions of record for purposes of
this motion.
Opposition No. 91227852

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a competent witness has testified to the truth of such matters); Hornblower & Weeks,
Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d 1733, 1736 (TTAB 2001) (declaration
testimony admissibile where it is internally consistent and not characterized by
uncertainty). Moreover, because Mr. Chen’s testimony sufficiently explains that the
articles in Exhibit 2 are relevant to describe the nature of Opposer’s services,
Applicant’s relevance objection is overruled. See, e.g., Alcatraz Media, Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013); Panda Travel,
Inc. v. Resort Option Enterprises, Inc., 94 USPQ2d 1789, 1793 (TTAB 2009).
Inasmuch as Exhibit 7 is unsigned, however, it is insufficient evidence that this
particular agreement was ever executed and Applicant’s objection to the vendor
agreement is sustained.
Turning to Opposer’s evidentiary objections, to the extent Exhibit A to Applicant’s
Souza Declaration includes summary listings of marks retrieved from the USPTO’s
TESS database showing the mark, serial number and/or registration number, and
the status of the application/registration, but not the services or other particulars
concerning the marks, these search summaries have little, if any, probative value.
See Edom Lab., Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012); Calypso Tech.,
Inc. v. Calypso Capital Mgmt., LP, 100 USPQ2d 1213, 1217-18 (TTAB 2011).6
Likewise, to the extent Exhibit B to Applicant’s Souza Declaration includes Google
search results, such search summaries do not provide sufficient context for the use of

6 Further, the majority of the marks in the summary appear to be unregistered or show a
status of “dead.” Such listings have no probative value. See, e.g., Interpayment Servs. Ltd. v.
Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003) (third-party applications are
evidence only of the fact that they have been filed).
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the MISSION Marks on the webpages linked to the search report, and are entitled to
little, if any, weight. See id.
Ultimately, except as otherwise noted above, we have considered the entire record,
keeping in mind the parties’ objections, and have accorded the evidence whatever
probative value it merits.
Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute as to any material fact, thus leaving the case to be resolved as
a matter of law. See Fed. R. Civ. P. 56(a). The party moving for summary judgment
has the initial burden of demonstrating that there is no genuine dispute of material
fact remaining for trial and that it is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1987).
In considering the propriety of summary judgment, all evidence must be viewed
in a light favorable to the nonmovant, in this case Applicant, and all justifiable
inferences are to be drawn in the nonmovant’s favor. Opryland USA Inc. v. Great Am.
Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992). The Board
may not resolve issues of material fact; it may only ascertain whether such issues are
present. See Lloyd’s Food Prod., Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027,
2029 (Fed. Cir. 1993); Opryland USA, 23 USPQ2d at 1472; Olde Tyme Foods, Inc. v.
Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992).
When the moving party’s motion is supported by evidence sufficient to indicate
that there is no genuine dispute of material fact, and that the moving party is entitled
Opposition No. 91227852

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to judgment as a matter of law, the burden shifts to the nonmoving party to
demonstrate the existence of specific, genuinely disputed facts that must be resolved
at trial. Enbridge, Inc. v. Excelerate Energy Ltd. P’ship, 92 USPQ2d 1537, 1540 (TTAB
2009). The nonmoving party may not rest on the mere allegations of its pleadings and
assertions of counsel, but must designate specific portions of the record or produce
additional evidence showing the existence of a genuine dispute as to a material fact
for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. In general, to establish the
existence of disputed facts requiring trial, the nonmoving party “must point to an
evidentiary conflict created on the record at least by a counterstatement of facts set
forth in detail in an affidavit by a knowledgeable affiant.” Octocom Sys., Inc. v.
Houston Computer Serv., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1786 (Fed. Cir. 1990).
A. Standing
Our primary reviewing court has enunciated a liberal threshold for determining
standing, namely that a plaintiff must demonstrate that it possesses a “real interest”
in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his
belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014) (quotation omitted), cert. denied, 135 S. Ct. 1401
(2015). A “real interest” is a “direct and personal stake” in the outcome of the
proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir.
1999). A claim of likelihood of confusion that “is not wholly without merit,” including
prior use of a confusingly similar mark, may be sufficient. Lipton Indus., Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
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Through the Declaration of David Chen, as well as supporting exhibits, Opposer
has established with respect to its claim of priority of use and likelihood of confusion
that it uses the MISSION ESCAPE GAMES design mark and the MISSION ESCAPE
GAMES standard character mark in connection with entertainment services, namely,
“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.”7 Chen Dec. at ¶¶ 1-3
and Exs. 1, 3, 5, 6, 9, 10, 12, 13; see also Syngenta Crop Prot., Inc. v. Bio-Chek, LLC,
90 USPQ2d 1112, 1118 (TTAB 2009) (testimony regarding use of the involved mark
is sufficient to support opposer’s allegations of a reasonable belief that it would be
damaged by registration of applicant’s mark); Kohler Co. v. Baldwin Hardware Corp.,
82 USPQ2d 1100, 1106 (TTAB 2007). Contrary to Applicant’s arguments, inasmuch
as Applicant’s application recites essentially identical services, namely, “conducting
live entertainment in the nature of games featuring room escape, puzzles and team
strategy,” no more is necessary for standing. See Wet Seal, Inc. v. FD Mgmt., Inc., 82
USPQ2d 1629, 1635 (TTAB 2007) (citing Lipton Industries, Inc, 213 USPQ at 189).8

7 Inasmuch as Applicant does not, in any way, connect the Mission: Escape Inc. entity named
in Exhibit C to the Souza Declaration to Opposer, we do not consider the New York Secretary
of State business entity search results to be probative of ownership of the MISSION Marks.

8 Additionally, inasmuch as Applicant admits that Opposer’s applications for the MISSION
and MISSION ESCAPE GAMES marks in standard characters have been suspended based
on a potential likelihood of confusion with Applicant’s involved applications (see Applicant’s
brief at p. 3), Applicant’s admission serves as another basis for Opposer’s standing. See
Empresa Cubana, 111 USPQ2d at 1062; cf. Eveready Battery Co., Inc. v. Green Planet, Inc.,
91 USPQ2d 1511, 1515-16 (TTAB 2009) (admissions in applicant’s brief contribute to finding
that certain DuPont factors favor Opposer); In re Rolf Dietrich, 91 USPQ2d 1622, 1632-33
(TTAB 2009) (Board relies on applicant’s admission in its brief that the subject mark is
covered by a claim in one of its patents in finding that the mark is functional).
Opposition No. 91227852

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B. Priority
We turn next to the issue of whether there is a genuine issue of material fact
regarding Opposer’s asserted priority of use. To establish priority on a likelihood of
confusion ground brought under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), a party must prove that, vis-a-vis the other party, it owns a “mark or trade
name previously used in the United States ... and not abandoned... .” 15 U.S.C. § 1052;
see also Otto Roth & Co., Inc. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40,
43-44 (C.C.P.A. 1981); Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1023
(TTAB 2009). A plaintiff may establish its own prior rights in a mark through actual
use or through use analogous to trademark use, such as use in advertising brochures,
trade publications, catalogues, newspaper advertisements and Internet websites,
which creates a public awareness of the designation as a trademark identifying the
party as a source. See Sections 2(d) and 45 of the Trademark Act, 15 U.S.C. §§ 1052(d)
and 1127; T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1882-83
(Fed. Cir. 1996), vacating PacTel Teletrac v. T.A.B. Sys., 32 USPQ2d 1668 (TTAB
1994).
The Federal Circuit has emphasized that when an opposer seeks to prove first use
prior to that of the applicant, the totality of the evidence of prior use should be
weighed. See West Florida Seafood, Inc. v. Jet Restaurants, Inc., 31 F.3d 1122, 31
USPQ2d 1660, 1663 (Fed. Cir. 1994). Declaration testimony accompanied by
corroborating evidence, if sufficiently probative, may suffice to establish priority.
Kohler, 82 USPQ2d at 1108.
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For purposes of determining priority of use, Applicant’s dates of first use are
November 10, 2015 for the MISSION ESCAPE mark and November 11, 2015 for the
MISSION ESCAPE ROOMS mark, that is, the respective filing dates of its
applications.9 See Herbko Int’l v. Kappa Books, Inc., 303 F.3d 1156, 64 USPQ2d 1375,
1378 (Fed. Cir. 2002); Otto Roth, 209 USPQ at 43; Automedx, Inc. v. Artivent Corp.,
95 USPQ2d 1976, 1978 (TTAB 2010); Miller Brewing Co. v. Annheuser-Busch Inc., 27
USPQ2d 1711, 1714 (TTAB 1993). Through the Chen Declaration,10 Opposer has
presented clear, consistent, convincing and uncontradicted evidence which shows
that well before November 2015, Opposer has continuously applied the MISSION
ESCAPE GAMES design mark and the MISSION ESCAPE GAMES standard
character mark (collectively, the “MISSION ESCAPE GAMES Marks”) to arranging
and conducting entertainment by means of live interactive puzzle adventure games
and challenges. The record shows that before Applicant filed its involved applications,
Opposer had sold over 37,000 tickets to games held at its Manhattan and Queens
locations to customers from at least forty-seven states, all in connection with its
MISSION ESCAPE GAMES Marks.11 Chen Dec. at ¶¶ 7, 10, 11, 12 and Exs. 5, 6.

9 Applicant did not submit any evidence of earlier use of its marks.

10 Although Applicant attempts to cast doubt on Mr. Chen’s testimony that Opposer owns
and uses the MISSION Marks (Applicant’s brief at p. 6), it provides no basis or evidence for
its assertion. Suspicion alone is insufficient to invalidate the operative facts set out in a
supporting declaration. See, e.g., 4 Co. of America, Inc. v. Naas Foods, Inc., 175 USPQ 251,
253 (TTAB 1972).

11 To the extent Applicant attempts to argue that Opposer has only used its marks, if at all,
in intrastate commerce, and has therefore failed to establish priority, Applicant is incorrect.
See Christian Faith Fellowship Church v. Adidas AG, 841 F.3d 986, 120 USPQ2d 1640, 1644-
47 (Fed. Cir. 2016); First Niagara Ins. Brokers, Inc. v. First Niagara Financial Group, Inc.,
476 F.3d 867, 81 USPQ2d 1375, 1378 (Fed. Cir. 2007); In re Silenius Wines, Inc., 557 F.2d
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Opposer began promoting its services in connection with its MISSION ESCAPE
GAMES Marks on social media at least as early as June 2014, and its advertising
campaign on Facebook reached over 5 million users between May 2014 and October
2015. Chen Dec. at ¶¶ 19, 20 and Exs. 3, 9. Opposer also purchased advertising
campaigns on Yelp.com that ran from June 2015 to March 21, 2017. Chen Dec. at ¶
21 and Ex. 10. Moreover, Opposer’s services have been featured in connection with
its MISSION ESCAPE GAMES Marks by third parties such as
RoomEscapeArtist.com (dating back to October 2014) and Newsweek (on April 19,
2015). Chen Dec. at ¶ 24 and Ex. 12. Opposer continues to offer its services in
connection with its MISSION ESCAPE GAMES Marks, selling an additional 50,000
tickets between November 2015 through the end of January 2017 and opening a third
location in Anaheim, California in October 2016. Chen Dec. at ¶¶ 14, 17.
Although the totality of Opposer’s uncontradicted evidence establishes its prior
use of its MISSION ESCAPE GAMES Marks (i.e., the MISSION ESCAPE GAMES
design mark and the MISSION ESCAPE GAMES standard character mark), Opposer
has not shouldered its burden of demonstrating that there is no genuine dispute of
material fact remaining for trial with respect to its prior use of the mark MISSION
apart from the MISSION ESCAPE GAMES Marks.
C. Likelihood of Confusion
Whether there is a likelihood of confusion between two marks presents an issue
of law based on underlying facts, namely findings under the DuPont factors. Among

806, 194 USPQ 261 (TTAB 1977) (use in commerce may be based on intrastate sales where
there is an impact on interstate commerce).
Opposition No. 91227852

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these factors is the number and nature of similar marks in use on similar goods,
which bears on the strength or weakness of an opposer’s mark. Juice Generation, Inc.
v. GS Enter. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). “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.” Id.; 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).
As evidence of third-party use, Applicant has submitted copies of registrations of
MISSION-formative marks for similar services in International Class 41, such as
MISSION COMBAT for “providing facilities and equipment for playing laser tag
games”; URBAN MISSION for “entertainment services, namely, providing facilities
for conducting laser tag games”; MTF MISSION TASKFORCE and design for
“entertainment services, namely conducting games for group participation”; and
MISSION: SPACE for “entertainment services, namely, an amusement park
attraction.”12 Souza Dec. at Ex. A.13 Although Applicant has not submitted any
evidence regarding actual use of the marks featured in these third-party
registrations, the registrations themselves may be entitled to “some weight to show
the meaning of a mark in the same way that dictionaries are used.” Tektronix, Inc. v.
Daktronix, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (C.C.P.A. 1976). Applicant also

12 See Reg. Nos. 4717703; 4739887; 2704557; 2791850.

13 In addition to search summaries, Exhibit A to the Souza Declaration also includes copies
of registration certificates for MISSION-formative marks in International Class 41.
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introduces screen shots of websites featuring use of ESCAPE MISSION for escape
rooms in Chattanooga, Tennessee; MISSION X ESCAPE for escape rooms in
Durham, North Carolina; MISSION: ESCAPE for escape games in Atlanta, Georgia;
and THE IMPOSSIBLE MISSION ESCAPE CHALLENGE for escape missions in
Olympia Fields, Illinois. Souza Dec. at Ex. B.
Upon careful consideration of the parties’ arguments and evidence, and drawing
all inferences in favor of Applicant as the non-movant, we find that Opposer has not
met its burden of demonstrating that there are no genuine disputes of material fact
at least as to the conceptual and commercial strength of Opposer’s marks, the scope
of protection to be accorded Opposer’s marks, and whether the marks are confusingly
similar.14 Accordingly, Opposer’s motion for summary judgment on its pleaded claim
of likelihood of confusion is denied.15
Conclusion
Opposer’s motion for summary judgment is granted as to Opposer’s standing;
granted in part as to Opposer’s priority of use with respect to its MISSION ESCAPE
GAMES design mark and MISSION ESCAPE GAMES standard character mark, and

14 The issues identified for trial are not necessarily the only issues remaining.

15 The evidence submitted in connection with a motion for summary judgment or opposition
thereto is of record only for consideration of that motion. To be considered at final hearing,
evidence must be properly introduced during the appropriate trial period. See Levi Strauss
& Co. v. R. Josephs Sportswear, Inc., 28 USPQ2d 1464, 1465 (TTAB 1993); Pet Inc. v. Bassetti,
219 USPQ 911, 913 (TTAB 1983). Additionally, Applicant is advised that, to be admissible at
trial, evidence of use of a mark contained in a third-party website must include that website’s
full URL and the date accessed or printed. See Trademark Rule 2.122(e)(2); Safer, 94 USPQ2d
at 1039.
Opposition No. 91227852

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denied in part as to its priority of use with respect to its MISSION mark alone; and
denied as to its pleaded claim of likelihood of confusion with Applicant’s marks.16
ACR Recommendation
Inasmuch as Opposer has established its standing and priority of use as to its
MISSION ESCAPE GAMES Marks, and likelihood of confusion is the only claim in
this case, the Board recommends adoption of ACR (accelerated case resolution)
procedures. Information about ACR is available on the TTAB website or the parties
may request a conference with the assigned interlocutory attorney.
Trial Schedule
Proceedings are resumed. Remaining dates are reset as follows:
Plaintiff's Pretrial Disclosures Due September 8, 2017
Plaintiff's 30-day Trial Period Ends October 23, 2017
Defendant's Pretrial Disclosures Due November 7, 2017
Defendant's 30-day Trial Period Ends December 22, 2017
Plaintiff's Rebuttal Disclosures Due January 6, 2018
Plaintiff's 15-day Rebuttal Period Ends February 5, 2018
BRIEFS SHALL BE DUE AS FOLLOWS:
Plaintiff's Main Brief Due April 6, 2018
Defendant's Main Brief Due May 6, 2018
Plaintiff's Reply Brief Due May 21, 2018

Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in

16 The Board denies Applicant’s request to enter summary judgment sua sponte in favor of
Applicant with respect to Opposer’s priority of use of its MISSION mark. See Opposer’s brief
at p. 22.
Opposition No. 91227852

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Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
manner and timing of taking testimony, matters in evidence, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
final hearing will be scheduled only upon the timely submission of a separate notice
as allowed by Trademark Rule 2.129(a).
Recent Rules Change
CHANGES TO THE TRADEMARK TRIAL AND APPEAL BOARD RULES OF
PRACTICE BECAME EFFECTIVE JANUARY 14, 2017
The USPTO published a Notice of Final Rulemaking in the Federal Register on
October 7, 2016, at 81 Fed. Reg. 69950. It sets forth several amendments to the rules
that govern inter partes (oppositions, cancellations, concurrent use) and ex parte
appeal proceedings. A correction to the final rule was published on December 12,
2016, at 81 Fed. Reg. 89382.
For complete information, the parties are referred to:
• The Board’s home page on the uspto.gov website:
http://www.uspto.gov/trademarks-application-process/trademark-trial-
and-appeal-board-ttab
• The final rule:
http://www.uspto.gov/sites/default/files/documents/81%20FR%2069950.
pdf
• The correction to the final rule:
http://www.uspto.gov/sites/default/files/documents/81%20FR%2089382.
pdf
• A chart summarizing the affected rules and changes:
http://www.uspto.gov/sites/default/files/documents/Chart%20Summariz
ing%20Rule%20Changes%2012-9-16.pdf

For all proceedings, including those already in progress on January 14, 2017, some of
the changes are:
Opposition No. 91227852

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• All pleadings and submissions must be filed through ESTTA.
Trademark Rules 2.101, 2.102, 2.106, 2.111, 2.114, 2.121, 2.123, 2.126,
2.190, and 2.191.
• Service of all papers must be made by email, unless otherwise
stipulated. Trademark Rule 2.119.
• Response periods are no longer extended by five days for service by first-
class mail, Priority Mail Express®, or overnight courier. Trademark
Rule 2.119.
• Deadlines for submissions to the Board that are initiated by a date of
service are 20 days. Trademark Rule 2.119. Responses to motions for
summary judgment remain 30 days. Similarly, deadlines for responses
to discovery requests remain 30 days.
• All discovery requests must be served early enough to allow for
responses prior to the close of discovery. Trademark Rule 2.120. Duty to
supplement discovery responses will continue after the close of
discovery.
• Motions to compel initial disclosures must be filed within 30 days after
the deadline for serving initial disclosures. Trademark Rule 2.120.
• Motions to compel discovery, motions to test the sufficiency of responses
or objections, and motions for summary judgment must be filed prior to
the first pretrial disclosure deadline. Trademark Rules 2.120 and 2.127.
• Requests for production and requests for admission, as well as
interrogatories, are each limited to 75. Trademark Rule 2.120.
• Testimony may be submitted in the form of an affidavit or declaration.
Trademark Rules 2.121, 2.123, and 2.125.
• New requirements for the submission of trial evidence and deposition
transcripts. Trademark Rules 2.122, 2.123, and 2.125.
This is only a summary of the significant content of the Final Rule. All parties
involved in a Board proceeding should read the entire Final Rule.