By Bryan K. Wheelock, Principal
HBO, producers of the popular television series GAME OF THRONES, has filed an opposition against the trademark applications for GAME OF THORNS and the stylized version of GAME OF THORNS seen here:
Unless the thought is that consumers won’t notice the difference between THRONES and THORNS, however, or consumers are likely to believe that HBO misspelled its name, confusion seems unlikely.
HBO goes on to allege dilution, as well, stating:
It does not seem likely that a botanic garden will tarnish the image of the world of Westeros and Essos, and, as with the likelihood of confusion, tarnishment by blurring would seem to require that consumers won’t notice the difference between THRONES and THORNS, or are likely to believe that HBO misspelled its name.
The Botanic Garden is clearly making a pun. While many regard puns as the lowest form of humor, one must ask if they are they prohibited by trademark law. It seems that if most people get the joke, there can be no likelihood of confusion or dilution, because getting the joke relies upon knowing the difference between a throne and a thorn.
Not getting the joke, however, might indicate at least a possibility of confusion. This would mean that trademark law might apply.
While we don’t want trademark law interfering with good jokes, if it can stop bad jokes then that’s probably a good thing. We will have to wait to see whether or not the TTAB gets the joke.