TTAB Sustains Shark Tank Opposition: The Impact of Deemed Admissions and Famous Marks

Overview

The Trademark Trial and Appeal Board (TTAB) sustained an opposition proceeding involving Sony Pictures Television Inc., owner of the globally recognized SHARK TANK franchise, and an individual applicant who attempted to register the mark CELEBRITY PITCH TANK for internet-based reality television services. The case provides a rigorous examination of how the Board weighs the commercial strength of a mark against a newcomer's attempt to adopt a similar naming convention in the same industry.

Background

The Applicant filed Application to register the mark CELEBRITY PITCH TANK in standard characters for “Entertainment, namely, a continuing reality show broadcast over the internet during which participants give away cash for scholarships and startup businesses” in International Class 41. The terms "CELEBRITY PITCH" are disclaimed.

Sony Pictures Television Inc. filed an opposition to this registration under Trademark Act Section 2(d), citing a likelihood of confusion. The Opposer relied on its ownership of prior registrations, including SHARK TANK for “entertainment services in the nature of an ongoing reality television series, involving presentation of business concepts” in International Class 41, and SHARK TANK for “business consulting services, namely, facilitating the introduction of potential private investors to entrepreneurs in need of funding” in International Class 35.

Analysis

The Board focused its analysis on Opposer’s registered SHARK TANK mark for the Class 41 services, as they are closest to the Class 41 services in the subject application.

Entitlement and Priority

The Board first addressed the Opposer’s entitlement to bring the statutory cause of action. The Board noted that pleaded registrations suffice to establish a direct commercial interest and a reasonable belief of damage. Thus, the Opposer established entitlement by introducing copies of its SHARK TANK registrations from the USPTO database. Furthermore, because the Applicant acknowledged the Opposer's ownership of these valid and subsisting registrations, the Board found that the Opposer satisfied the requirements for standing.

Regarding priority, the Board determined that because the Opposer’s registrations were of record and valid, priority was not a contested issue for the Class 41 services. The Applicant also acknowledged the Opposer's use of the mark prior to his own filing date, further solidifying the Opposer's priority.

DuPont #2: Similarity or Dissimilarity of the Services

In evaluating the services, the Board compared the Applicant’s internet-based reality show featuring cash giveaways for scholarships and startups with the Opposer’s reality television series involving business concept presentations. The Applicant argued that his services were distinct because they focused on "scholarship, mentorship, and community-based opportunities," whereas SHARK TANK focuses on "business investment."

However, the Board rejected this narrow interpretation, emphasizing that it must base its analysis on the services as identified in the application. The Applicant’s identification explicitly included "startup businesses" and "giving away cash."

Furthermore, because the Applicant failed to respond to discovery requests, he was deemed to have admitted that "the content of reality shows intended to be offered in connection with Applicant’s Mark will include business or financial themes." Consequently, the Board concluded that the services are closely related because both involve reality shows featuring business or business themes.

DuPont #3 and #4: Similarity of Trade Channels and Conditions of Sale

The Board examined the media landscape to determine whether the trade channels for internet broadcasts and network television overlap. Opposer's witness testified that "shows broadcast through network and cable television are considered to compete with shows broadcast or streamed over the Internet." He noted that Sony streams SHARK TANK content through YouTube and other digital platforms, reaching the same audiences that the Applicant intended to target.

The Applicant’s own discovery responses indicated his target audience included consumers aged 15 to 75 and specifically included "fans of Opposer’s SHARK TANK Television Program." Consequently, the Board found that there was an overlap in target consumers.

Regarding the conditions of sale, the Board noted that while some participants might be sophisticated, the "least sophisticated consumer" (the general public) might choose to watch a program on impulse. The Board observed that:

"ordinary consumers who watch Applicant’s and Opposer’s reality programs are likely to exercise only ordinary care, especially given that Applicant’s internet shows may be available for free and at least the first run shows of Opposer’s television program are broadcast on the ABC network and “free."

Therefore, this factor weighs in favor of a likelihood of confusion.

DuPont #5: Fame and Commercial Strength

The Board evaluated commercial strength through volume of sales, advertising, and length of use. The Opposer's witness provided extensive data in his testimony:

• The SHARK TANK program is a prime time reality television show that has been renewed for seventeen seasons on ABC.
• Over 1,300 entrepreneurs have appeared across 359 episodes.
• The show consistently ranks in the top 200 watched shows nationwide, averaging over 2 million viewers per episode.
• Syndicated reruns air nightly on CNBC, where it is the network's top-rated show.
• The mark has "over a billion viewers across all episodes and seasons" when accounting for streaming on platforms like Hulu, Apple TV, and Amazon.

The testimony also demonstrated that the mark has been recognized in popular culture, citing parodies on Saturday Night Live and numerous Emmy Awards. Additionally, the Opposer permits past participants to use the "As Seen on SHARK TANK" designation in retail environments like Walmart and Target. The Applicant’s own answer and deemed admissions further supported the Board's finding that SHARK TANK is "commercially strong, falls on the higher end of the fame spectrum, and is entitled to broad protection."

DuPont #6: Conceptual Strength and Third-Party Use

With respect to its conceptual strength, the Board found that SHARK TANK is registered on the Principal Register without a claim of acquired distinctiveness and is treated as inherently distinctive.

The Applicant argued that the term "TANK" is a common cultural term for collaboration and provided two images showing third-party use. The Opposer countered by offering dictionary definitions of "TANK" and criticizing the Applicant's evidence as deficient.

The Board found the Applicant's argument and evidence unconvincing, noting that these third-party examples involved school competitions rather than reality shows. Instead, the Board determined SHARK TANK to be "arbitrary when used in connection with reality shows."

Commercial weakness
The Applicant attempted to use the same images to support the proposition that "TANK" is commercially weak. The Board found the evidence insufficient to show common use of the term TANK by third parties in connection with reality shows, finding that the term is not commercially weak.

Ultimately, the Board found the sixth DuPont factor to be neutral.

DuPont # 7 & 8: Nature and Extent of Actual Confusion and Opportunity for Confusion

The seventh and eighth DuPont factors consider the nature and extent of any actual confusion and the opportunity for actual confusion, respectively.

Because the Applicant has not yet produced any reality shows under the mark, there has been no opportunity for confusion to occur. Consequently, the Board treated the seventh and eighth DuPont factors as neutral.

DuPont #1: Similarity of the Marks

The Board analyzed CELEBRITY PITCH TANK and SHARK TANK in their entireties.

While acknowledging visual and aural differences, namely the addition of "CELEBRITY PITCH," the Board focused on the overall commercial impression. Because the Applicant disclaimed "CELEBRITY PITCH," those words were deemed less significant in creating the mark’s commercial impression.

The dominant portion of the Applicant’s mark was thus the word "TANK." The Board reasoned that because the services were highly similar, the degree of similarity required between the marks to find confusion is lower. The Board noted that consumers are "likely to focus on the TANK portion" and that the marks "convey the same connotation in connection with reality programs relating to business topics."

The Board concluded that "the marks are sufficiently similar in their entireties such that persons who encounter the marks would be likely to assume a connection between the parties."

DuPont #13: Bad Faith Intent

The Opposer pointed to the Applicant's prior attempt to register COMMUNITY SHARK TANK, which he withdrew only after an opposition was filed. In his deposition, the Applicant claimed he thought the name was "generic" because it had become part of the "social fabric of the culture."

Despite his claims of an "honest mistake" and "good faith," the Board focused on a specific deemed admission: the Applicant admitted to selecting the CELEBRITY PITCH TANK mark to make reference to, or call to mind, the Opposer’s SHARK TANK television program. The Board determined that under Rule 36, this became a conclusive judicial admission that could not be rebutted by contrary testimony. Consequently, the Board found "sufficient evidence in the record to support a finding of bad faith intent to confuse."

Board’s Decision

The TTAB sustained the opposition and concluded that a likelihood of confusion exists between CELEBRITY PITCH TANK and SHARK TANK under Section 2(d) of the Trademark Act. This determination was based on the "very similar" nature of the services, the overlapping trade channels, the "commercially strong" and "famous" nature of the SHARK TANK mark, and the Applicant’s bad faith intent, which was established through deemed admissions.