Sony Pictures Television Inc. v. Tim Lynch

This Opinion is not a
Precedent of the TTAB
Mailed: June 9, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Sony Pictures Television Inc.
v.
Tim Lynch
_____
Opposition No. 91289684
_____
Richard S. Mandel and Lyndsey Waddington of Cowan Liebowitz & Latman PC
for Sony Pictures Television Inc.
Tim Lynch, Pro Se.
_____
Before Wellington, Goodman and Stanley,
Administrative Trademark Judges.
Opinion by Goodman, Administrative Trademark Judge:
Tim Lynch (“Applicant”) filed an application on the Principal Register to register
the mark CELEBRITY PITCH TANK (in standard characters, CELEBRITY PITCH
disclaimed) for the following services: “Entertainment, namely, a continuing reality

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show broadcast over the internet during which participants give away cash for
scholarships and startup businesses” in International Class 41.1
Sony Pictures Television Inc. (“Opposer”) opposes registration of Applicant’s mark
on the ground of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d).2 Opposer has pleaded ownership of Principal Register registrations for the
mark SHARK TANK (both in standard characters) for “entertainment services in the
nature of an ongoing reality television series, involving presentation of business
concepts” in International Class 41 and “business consulting services, namely,
facilitating the introduction of potential private investors to entrepreneurs in need of
funding” in International Class 35.3 Opposer also has pleaded use of SHARK TANK
(“alone or with other word, letter, and/or design elements”) in connection with “a wide
variety of goods and services, including entertainment services, business consulting
services, and other services related to raising funds.”4 Opposer also pleaded dilution
under Trademark Act Section 43, 15 U.S.C. § 1125(c).5
1 Application Serial No. 97800517 was filed on Feb. 17, 2023 under Section 1(b) of the
Trademark Act Section, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
References to the briefs and the record refer to the Board’s TTABVUE docket system.
2 Notice of Opposition (NOO) paragraph 18, 1 TTABVUE.
3 Id., paragraphs 9 and 10. Registration No. 3716584 (Class 41) issued Nov. 24, 2009, first
renewal, and Registration No. 5261312 (Class 35) issued Aug. 8, 2017, Section 8 accepted,
Section 15 acknowledged.
4 Id., paragraph 8.
5 Id., paragraphs 19 and 20.

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Applicant filed an answer denying the salient allegations in the notice of
opposition.6
Each party filed a trial brief.7
I. The Record
The record includes the pleadings, and by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the files of the involved application. In addition, Opposer
introduced notices of reliance and declaration testimony. Applicant introduced
declaration testimony with exhibits.
The entire record has been considered and relevant evidence is discussed
throughout this opinion. See SawStop, LLC v. Felder KG, No. 91255905, 2025 TTAB
LEXIS 351, at * 6-7 (“Although we do not list the contents of the record, it has been
reviewed and considered in its entirety.”).
The burden rests on Opposer to establish its statutory entitlement to oppose and
to prove its claims by a preponderance of the evidence. See B&B Hardware, Inc. v.
Hargis Ind., Inc., 575 U.S. 138, 144 (2015).
II. Entitlement to Statutory Cause of Action
To establish entitlement to a statutory cause of action, a plaintiff must
demonstrate: (i) an interest falling within the zone of interests protected by the
statute and (ii) proximate causation. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
1303 (Fed. Cir. 2020). Demonstrating a real interest in opposing registration of a
6 9 TTABVUE.
7 Opposer’s brief is at 49 TTABVUE; Applicant’s brief is at 50 TTABVUE.

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mark satisfies the zone-of-interests requirement, and demonstrating a reasonable
belief in damage by the registration of a mark demonstrates damage proximately
caused by registration of the mark. Id. at 1305-06.
Opposer introduced, under notice of reliance, copies of its pleaded SHARK TANK
registrations (Registration Nos. 3716584 and 5261312) from the USPTO Trademark
Status and Document Retrieval (TSDR) electronic database showing their current
status and title.8 Opposer’s witness Kevin Kelly, Vice President, Brand Marketing &
Creative for Opposer Sony Pictures Television Inc. (“SPT”), testified as to Opposer’s
ownership and current status of the pleaded registrations.9 Applicant, in his answer,
“acknowledge[d]” that Opposer owns these SHARK TANK registrations and that they
are valid and subsisting.10
The pleaded registrations establish Opposer’s direct commercial interest in the
proceeding. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)
(pleaded registrations “suffice to establish …direct commercial interest”; a belief in
likely damage can be shown by establishing a direct commercial interest).
Accordingly, we find Opposer has established its entitlement to a statutory cause of
action.
8 13 TTABVUE.
9 Kelly declaration, paragraphs 17 and 18, 42 TTABVUE.
10 Answer, paragraphs 9 and 10, 9 TTABVUE.

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III. Priority
Applicant has not sought to counterclaim to cancel Opposer’s pleaded SHARK
TANK registrations. Because Opposer has made its pleaded registrations of record
and shown them as valid and subsisting, priority is not an issue in this case as to the
marks and services recited in those registrations. King Candy, Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 1402 (CCPA 1974).
Because we find priority based on Opposer’s pleaded registrations, we need not
separately consider Opposer’s common law rights in SHARK TANK marks.11 See
Nkanginieme v. Appleton, No. 91256464, 2023 TTAB LEXIS 64, at *4-5 (Board did
not need to consider common law priority because it found it sufficient to rely on the
pleaded registration in analyzing likelihood of confusion).
IV. Likelihood of Confusion
We now turn our attention to the likelihood of confusion analysis.
Our determination of likelihood of confusion under Section 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973) (“DuPont”). “Not all of the DuPont factors are necessarily ‘relevant
or of equal weight in a given case, and any one of the factors may control a particular
case.’” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1362 (Fed. Cir.
2022) (citations omitted). We consider each DuPont factor for which there is evidence
11 In his answer, Applicant did acknowledge Opposer’s use prior to Feb. 17, 2023, Applicant’s
filing date. Answer, paragraph 8, 9 TTABVUE.

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and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019);
In re Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *2.
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 1322
(Fed. Cir. 2017); Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed.
Cir. 2002); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”). These factors, and others, are discussed below.
In our analysis, we will focus on Opposer’s registered SHARK TANK mark
(Registration No. 3716584) for the Class 41 services: “entertainment services in the
nature of an ongoing reality television series, involving presentation of business
concepts” as they are closest to the Class 41 services in the subject application. Fiserv,
Inc. v. Elec. Transaction Sys. Corp., No. 91214266, 2015 TTAB LEXIS 29, at *10.
A. Similarity or Dissimilarity of the Services
The second DuPont factor considers “the similarity or dissimilarity and nature of
the goods or services as described in an application or registration.” DuPont, 476 F.2d
at 1361; see i.am.symbolic, 866 F.3d at 1327; Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Comp. Servs.
Inc., 918 F.2d 937, 942 (Fed. Cir. 1990).
Applicant’s services are “[e]ntertainment, namely, a continuing reality show
broadcast over the internet during which participants give away cash for scholarships

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and startup businesses.”12 Opposer’s services are “entertainment services in the
nature of an ongoing reality television series, involving presentation of business
concepts.”
Opposer provided the following admission from Applicant:13
Admit that the content of reality shows intended to be offered in
connection with Applicant’s Mark will include business or financial
themes.
Applicant argues that its “services focus on scholarship, mentorship, and
community-based opportunities, which differ from Opposer’s business-investment
themed reality show.”14
However, we must base our analysis on the services as identified in the application
and registration. The involved application identifies a reality show that offers cash
for scholarships and business. Therefore, there is more than just an educational
scholarship focus to the services.
Based on the identifications, the services are closely related in that both involve
reality shows featuring business or business themes.15
12 According to Applicant, the participants in the show are pitching their ideas and the panel
and the audience votes on who should receive money. Third Notice of Reliance (NOR), 15
TTABVUE 28.
13 Second NOR, request no. 9, 14 TTABVUE. Opposer’s Second NOR includes Opposer’s
requests for admission and a statement from counsel that that no responses to the requests
were served by applicant. 14 TTABVUE. Applicant does not dispute that he failed to serve
responses to the requests for admission. The requests for admissions are therefore deemed
admitted because of Applicant’s failure to respond. See Fed. R. Civ. P. 36.
14 50 TTABVUE 3.
15 Additionally, Opposer provided third-party registrations showing that registrants offering
television programs deliver them through cable, satellite, telephone, internet and global and
wireless communication devices. Fifth NOR, 41 TTABVUE 676-881.

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B. Similarity or Dissimilarity of the Trade Channels and Conditions of Sale
We consider the “similarity or dissimilarity of established, likely-to-continue trade
channels” and “[t]he conditions under which and buyers to whom sales are made, i.e.
‘impulse’ vs. careful, sophisticated purchasing” under the third and fourth DuPont
factors. DuPont, 476 F.2d at 1361.
Opposer’s witness Mr. Kelly testified that:
In today’s media landscape, shows broadcast through network and cable
television are considered to compete with shows broadcast or streamed
over the Internet, and content providers, including SPT, commonly use
both channels to reach audiences, including as shown in SPT’s Fourth
Notice of Reliance. Indeed, SPT not only airs SHARK TANK episodes
through its traditional broadcast partners, but also streams content
from the show through its own digital platforms, such as its YouTube
channel, which makes available, among other content, clips of the
SHARK TANK show.16
As to classes of consumers, Applicant’s interrogatory response no. 6 identifies its
consumers as 15-75 years of age throughout the United States.17
In addition, the following admissions are in the record:18
Admit that the target audience for the services Applicant intends to offer
in connection with Applicant’s Mark will include start-up businesses.
Admit that the target audience for the services Applicant intends to offer
in connection with Applicant’s Mark will include financial investors or
potential financial investors.
16 Kelly declaration, paragraphs 1, and 39, 42 TTABVUE.
17 Second NOR 14 TTABVUE 22-23. Many of the interrogatory responses are entirely
redacted, and no confidential unredacted version was submitted. Opposer only relies on the
unredacted responses. Similarly, portions of Applicant’s deposition have been redacted, and
no unredacted version was submitted, so we consider only those portions which are viewable.
Third NOR, 15 TTABVUE.
18 Second NOR, request nos. 10, 11, 12, 14 TTABVUE.

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Admit that the target audience for the reality shows Applicant intends
to offer in connection with Applicant’s Mark will include fans of
Opposer’s SHARK TANK Television Program.
Mr. Kelly explained that “investors called ‘Sharks’” on the show look “to invest in
new American businesses and products” and that “budding entrepreneurs appear on
air before a panel of ‘Sharks’ to pitch their business ideas, products and services in
hopes of landing investment funds.”19
Based on the admissions and testimony, consumers of Applicant’s and Opposer’s
shows include aspiring entrepreneurs, start-up businesses, potential investors, and
those viewers from the general public interested in reality shows .
Looking to the identifications in the application and cited registration, Applicant’s
reality show is delivered via the internet while Opposer’s reality show is delivered by
television. However, Opposer’s witness explains that broadcast television programs
(network and cable) also may be offered via the internet through streaming services
and YouTube. Therefore, we find there is some overlap in the classes of consumers
and trade channels.
As to conditions of sale, purchaser sophistication or degree of care may tend to
minimize likelihood of confusion. Conversely, impulse purchases of inexpensive items
may tend to have the opposite effect. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin
Fondee En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005). We must make our
determination based on the least sophisticated consumer. Stone Lion Cap. Partners,
L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014).
19 Kelly declaration, paragraph 6, 42 TTABVUE.

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As indicated, Applicant’s and Opposer’s services are directed to both sophisticated
consumers (aspiring entrepreneurs, start-up businesses, potential investors) and
unsophisticated consumers (general public, those viewers interested in reality
shows). Applicant’s involved application offers his reality program on the internet
and Opposer’s reality program airs on network television and cable television (re-
runs) and is available for streaming. Aside from the reality show participants who
may be more sophisticated, the general public’s decision as the least sophisticated
consumer to watch a television or internet reality program “might well be made on
impulse.” Parfums de Coeur, Ltd. v. Lory Lazarus, No. 91161331, 2007 TTAB LEXIS
36, at *33 (“Applicant’s television series would be ‘free,’ and the decision to watch the
program might well be made on impulse.”). 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.”
C. Strength
We consider the fifth and sixth Dupont factors in order to evaluate the scope of
protection to which Opposer is entitled. DuPont, 476 F.2d at 1361. See Spireon, Inc.
v. Flex Ltd., 71 F.4th 1355,1362 (Fed. Cir. 2023) (“Two of the DuPont factors (the fifth
and sixth) consider strength.”). We consider both the inherent strength, based on the
nature of the mark itself, and, if there is evidence in the record of marketplace
recognition of the mark, its commercial strength. See Spireon, 71 F.4th at 1362; In re

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Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (“A mark’s strength
is measured both by its conceptual strength ... and its marketplace strength ....”). The
fifth DuPont factor enables Opposer to prove that its pleaded mark is entitled to an
expanded scope of protection by adducing evidence of “[t]he fame of the prior mark
(sales, advertising, length of use);” the sixth DuPont factor allows Applicant to
contract that scope of protection by adducing evidence of “[t]he number and nature of
similar marks in use on similar goods.” DuPont, 476 F.2d at 1361.
Commercial Strength
Commercial strength or “[f]ame for purposes of likelihood of confusion is a matter
of degree that ‘varies along a spectrum from very strong to very weak.’” Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1367 (Fed. Cir. 2012) (citations
omitted). We may measure commercial strength (or fame) indirectly, by volume of
sales and advertising expenditures and factors such as length of use of the mark,
widespread critical assessments, notice by independent sources of the goods or
services identified by the mark, and general reputation of the goods or services.
Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352, 2014 TTAB LEXIS 2,
at *18-19.
Mr. Kelly testified that SHARK TANK is a prime time reality television program,
renewed for its seventeenth season, that “connects entrepreneurs in need of funding
with investors called ‘Sharks’” where they pitch their business ideas.20 Since its ABC
network television premiere in 2009, more than 1,300 entrepreneurs have pitched
20 Kelly declaration, paragraphs 6, 9, 42 TTABVUE.

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their businesses over 359 episodes.21 Throughout the broadcast, SHARK TANK
marks are displayed.22 SHARK TANK ranks as one of the top 200 watched shows
nationwide with one to three million viewers per episode; it has averaged more than
2 million viewers per episode over the past five seasons.23 Syndicated in 2013, reruns
of SHARK TANK have aired for the last dozen years nightly on CNBC; it is CNBC’s
number one show.24 Full episodes and highlight clips can be accessed online through
the show’s official website, major streaming platforms such as Hulu, Apple TV, and
Amazon, and Opposer’s YouTube channel.25 Since its debut, there have been “over a
billion viewers across all episodes and seasons.”26 SHARK TANK has been recognized
in popular culture and has been parodied on Saturday Night Live.27
SHARK TANK has received numerous industry awards and nominations.28
Among those are Emmy awards for Outstanding Structured Reality Program 2014-
2017, and 2024, and Critics Choice awards for 2014-2018 for Best Reality Series or
Best Structured Reality series.29
21 Id., paragraphs 5, 7, 8.
22 Id., paragraph 19.
23 Id., paragraph 9.
24 Id, paragraphs 8, 9, 19.
25 Id., paragraph 16, 19.
26 Id., paragraph 9.
27 Id., paragraph 12. In Applicant’s answer, paragraph 5, 9 TTABVUE, Applicant
“acknowledge[d]” Opposer’s allegation that SHARK TANK is a “culturally defining series”
and that it had won numerous awards.
28 Kelly declaration, paragraphs 12-14, 42 TTABVUE.
29 Id. paragraph 12, 13.

Opposition No. 91289684
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Mr. Kelly states that “[m]illions more [people] are familiar with the SHARK
TANK show as a result of the sustained and extensive press coverage it has received
over the past sixteen years.”30 According to Mr. Kelly, the SHARK TANK show, the
entrepreneurs, and investors have received press coverage across online and print
publications including the New York Times, Forbes, Entertainment Weekly, The Los
Angeles Times, Variety and USA Today.31 Mr. Kelly indicates “the fame of the
individual ‘Sharks’ and their appearances and interviews outside the show “generate
significant additional exposure for the SHARK TANK brand and mark” as the
SHARK TANK marks are frequently referenced in such interviews and
appearances.32 Shark Tank is promoted on Applicant’s social media sites (Facebook,
X/Twitter, Instagram).33
Opposer has used SHARK TANK on officially licensed products, and the SHARK
TANK television show offers a variety of promotional merchandise bearing the mark
for purchase (ABC Shop and the Hulu shop).34 Two books were published under the
SHARK TANK brand.35 The “Sharks” on the show participate in keynote speeches,
panels, and other events on business and investing, have published their own books,
30 Id., paragraph 20.
31 Id., paragraph 20. Applicant “acknowledge[d]” the extensive press coverage of the show.
Answer, paragraph 7, 9 TTABVUE. Mr. Kelly’s testimony also was corroborated by the
Fourth NOR, 17-40 TTABVUE, which included articles from online and print publications,
including those related to the “Sharks.”
32 Kelly declaration, paragraph 21, 42 TTABVUE.
33 Id., paragraph 22.
34 Id., paragraph 24.
35 Id., paragraph 26.

Opposition No. 91289684
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are frequently interviewed by news outlets about their personal business endeavors,
and make media appearances on other television shows, radio shows, or at live
events, where the Shark Tank mark may be referenced.36 The SHARK TANK brand
also has been associated with educational and mentorship-driven initiatives and
there was a past collaboration with Staples.37
Opposer allows entrepreneurs who appeared on the show to use the designation
“AS SEEN ON SHARK TANK” in connection with many of the businesses, products,
and services that have appeared on the SHARK TANK show.38 These products are
available through major retail outlets such as Wal-Mart, Target, and Amazon; the
designation “AS SEEN ON SHARK TANK” has been prominently featured in
specially designated retail sections and displays.39
Opposer has submitted Applicant’s admissions relating to fame:40
Admit that Opposer’s SHARK TANK Television Program is a famous
television show.
Admit that Opposer’s SHARK TANK Marks are famous.
Admit that Opposer’s SHARK TANK Television Program was famous
prior to February 17, 2023.
36 Id., paragraphs 21, 27, 30.
37 Id., paragraph 29.
38 Id., paragraph 28.
39 Id., paragraph 28.
40 Second NOR, nos. 1, 2, 3, 4, 14 TTABVUE. Applicant’s answer “acknowledge[d]” the
SHARK TANK mark as distinctive and famous. Answer, paragraph 19, 9 TTABVUE.
Applicant’s answer also acknowledge[d] that “Opposer has developed highly valuable
goodwill in its SHARK TANK mark.” Id., paragraph 11.

Opposition No. 91289684
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Admit that Opposer’s SHARK TANK Marks were famous prior to
February 17, 2023.
We find based on the evidence of record and Applicant’s admissions, that the
SHARK TANK mark is commercially strong, falls on the higher end of the fame
spectrum, and is entitled to broad protection.
Conceptual Strength
“Conceptual strength is a measure of a mark’s distinctiveness, … and
distinctiveness is ‘often classified in categories of generally increasing
distinctiveness[:] ...(1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or
(5) fanciful.’” Spireon, 71 F.4th at 1362 (citations omitted).
With respect to its conceptual strength, Opposer’s SHARK TANK mark is
registered on the Principal Register without a claim of acquired distinctiveness and
is treated as inherently distinctive. See New Era Cap Co., Inc. v. Pro Era, LLC, No.
91216455, 2020 TTAB LEXIS 199, at *29 (“Opposer’s mark is inherently distinctive
as evidenced by its registration on the Principal Register without a claim of acquired
distinctiveness under Section 2(f) of the Trademark Act.”).
Applicant argues that “[t]he word “tank” is a common cultural term describing
collaboration and is not exclusive to Opposer.”41
Opposer provided dictionary definitions of TANK that generally show, as the most
relevant definitions, “a container that holds liquid or gas,” CAMBRIDGE DICTIONARY;
“a large receptable, container, or structure for holding a liquid or gas” or a “natural
41 50 TTABVUE 3.

Opposition No. 91289684
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or artificial pool, pond or lake,” Dictionary.com, and “a usually large container for
holding, transporting, or storing liquids.” MERRIAM-WEBSTER DICTIONARY.42
We take judicial notice of the dictionary definition of “shark” which means “any of
a group of elongate elasmobranch, mostly marine fishes, certain species of which are
large, voracious, and sometimes dangerous to humans.”43 See Made in Nature, LLC
v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *26 (2022) (taking
judicial notice of dictionary definitions in connection with conceptual strength).
We also may consider use based evidence in connection with conceptual strength.
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir. 2015) (Board
erred in never inquiring “whether and to what degree the extensive evidence of third-
party use and registrations indicates that the phrase PEACE & LOVE carries a
suggestive or descriptive connotation in the food service industry, and is weak for
that reason”). Applicant provided embedded evidence (images) in his declaration of
the use of the TANK component in connection with what he describes as education
and idea competitions: SUPE TANK and STEM TANK.44 Mr. Lynch’s declaration
does show a URL for at least one of these examples.45 Opposer criticizes this evidence
as screenshots of websites without URLs, asserts that Mr. Lynch’s testimony is
42 Sixth NOR, 48 TTABVUE 5, 9, 12, 17.
43 See In re Red Bull GmbH, No. 75788830, 2006 TTAB LEXIS 136, at *7-9 (TTAB 2006) (the
Board may take judicial notice of online dictionary definitions that exist in print format).
COLLINS ENGLISH DICTIONARY (dictionary..com, accessed June 5, 2026).
44 Tim Lynch Declaration, (Lynch declaration), paragraph 7, exhibit C, , 46 TTABVUE.
45 The nature of the competitions is unclear from the images provided by Applicant. The URL
offered does not include a date.

Opposition No. 91289684
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insufficient, and argues that this evidence cannot show the market impact of these
uses.46
Aside from the lack of information provided about these competitions by Mr.
Lynch’s testimony, and the lack of complete webpages, these examples are not reality
shows but school competitions, according to Mr. Lynch. As these two examples of use
of the TANK component do not involve reality shows, they are entitled to less
probative weight to show conceptual weakness of the term TANK. Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 877-78 (Fed. Cir. 1992) (Because
the relevant DuPont inquiry is “the number and nature of similar marks in use on
similar goods” … “it is less relevant that ‘Century’ is used on unrelated goods or
services”).
We find SHARK TANK (i.e., a natural or artificial pool, pond or lake or liquid
receptacle containing elongate elasmobranch mostly marine fishes) is arbitrary when
used in connection with reality shows.
Commercial Weakness
Evidence of third-party use may bear on the strength or weakness of a mark in
the marketplace. Juice Generation, 794 F.3d at 1338. “[T]he purpose of a defendant
introducing third-party uses is to show that customers have become so conditioned
by a plethora of such similar marks that customers have been educated to distinguish
between different such marks on the bases of minute distinctions.” Palm Bay Imps.,
396 F.3d at 1373. Applicant relies on the same two uses of the component TANK
46 49 TTABVUE 41-42.

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discussed above. We find the previously discussed uses of TANK for certain types of
competitions are not sufficient to show common use of the term TANK by third parties
in connection with reality shows. Therefore we do not find TANK commercially weak.
We find the sixth DuPont factor neutral.
D. Actual Confusion
The seventh and eighth DuPont factors relate, respectively, to the nature and
extent of any actual confusion and the extent of the opportunity for actual confusion.
See DuPont, 476 F.2d at 1361. These “factors are interrelated; the absence of evidence
of actual confusion, under the seventh DuPont factor, by itself is entitled to little
weight in our likelihood of confusion analysis unless there also is evidence, under the
eighth DuPont factor, that there has been a significant opportunity for actual
confusion to have occurred.” Keystone Consol. Indus. v. Franklin Inv. Corp., No.
92066927, 2024 TTAB LEXIS 290, at *75-76 (citing In re Cont’l Graphics Corp., No.
75033628, 1999 TTAB LEXIS 500, at *9; Gillette Can. Inc. v. Ranir Corp., No.
91082769, 1992 TTAB LEXIS 24, at *19).
Opposer argues the lack of actual confusion is immaterial since Applicant’s
application is intent-to use.47 Applicant’s deposition testimony indicates that the
CELEBRITY PITCH TANK YouTube channel has been set up and has no content
currently but there are plans for content in the future.48 Applicant’s declaration also
47 49 TTABVUE 41.
48 Lynch Discovery Deposition, Third NOR, 15 TTABVUE 48-49, 51, (“We’re not promoting
Celebrity Pitch Tank, because we have a lot of development before it is a public facing
entity.”).

Opposition No. 91289684
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indicates that he has used the CELEBRITY PITCH TANK mark in connection with
promotional materials, presentations and community engagement activities.49
Because no reality shows have been produced by Applicant under the mark, there
has been no opportunity for confusion to occur. We treat the seventh and eighth
DuPont factors as neutral. See In re Davey Prods. Pty, No. 77029776, 2009 TTAB
LEXIS 524, at *22-25.
E. Similarity of the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression under the first DuPont
factor. Palm Bay Imps., 396 F.3d at 1371. “Similarity in any one of these elements
may be sufficient to find the marks confusingly similar.” In re Davia, No. 85497617,
2014 TTAB LEXIS 214, *4; see also Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d
728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or
sound alone is likely to cause confusion.”).
The analysis cannot be predicated on dissecting the marks into their various
components. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985). On the other
hand, different features may be analyzed to determine whether the marks are
similar. Id. There is nothing improper in giving more or less weight to a particular
feature of a mark, provided the ultimate conclusion rests on a consideration of the
marks in their entireties. Id. In cases such as this, where Applicant’s services are
49 Lynch declaration, paragraph 3, 46 TTABVUE.

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highly similar to Opposer’s services, the degree of similarity between the marks
which is required to support a finding of likelihood of confusion is less than it would
be if the services were not highly similar. Century 21 Real Estate Corp. 970 F.2d at
877.
Applicant’s position is that the parties’ marks create different commercial
impressions.50
Applicant’s mark is CELEBRITY PITCH TANK (CELEBRITY PITCH disclaimed)
and Opposer’s mark is SHARK TANK.51
The second term TANK in both marks is visually and aurally identical. While the
marks clearly have some differences in sound, appearance, and connotation, in that
Applicant’s mark begins with CELEBRITY PITCH and Opposer’s mark begins with
SHARK, “[t]he proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. 668 F.3d at 1368.
Frequently, first words can make the biggest impact as source identifiers. But this
impact is blunted in Applicant’s mark because the disclaimed terms CELEBRITY
PITCH are at least descriptive, in that they identify a feature of the reality program
Applicant offers. Thus, the disclaimed words in Applicant’s mark have less source-
50 50 TTABVUE 3; Lynch declaration, paragraph 4, 46 TTABVUE.
51 Although Applicant’s declaration references the differences in branding of the marks,
Lynch declaration paragraph 8, Exhibit E, 46 TTABVUE both marks are in standard
characters which means that are “without claim to any particular font, style, size, or color.”
Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a).

Opposition No. 91289684
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identifying significance. Citigroup Inc. v. Cap. City Bank Grp., Inc., 637 F.3d 1344,
1351 (Fed. Cir. 2011) (“when a mark consists of two or more words, some of which are
disclaimed, the word not disclaimed is generally regarded as the dominant or critical
term”) (citation omitted); In re Code Consultants, Inc., No. 75645560, 2001 TTAB
LEXIS 685, at *12 (disclaimed wording, “while not ignored in the analysis, is … less
significant in creating the mark’s commercial impression.”). In view of the foregoing,
the dominant portion of Applicant’s mark is TANK.
As noted above, there is no evidence that TANK has been used by others in
connection with reality programs or that TANK has any meaning in connection with
reality programs. SHARK TANK is arbitrary when used in connection with reality
programs,52 and arbitrary terms are conceptually strong trademarks. Palm Bay
Imps., 396 F.3d at 1372 (“VEUVE is an arbitrary term as applied to champagne and
sparkling wine, and thus conceptually strong as a trademark.”). We also account for
the fame (see supra at p. 15) of Opposer’s SHARK TANK mark.
Although CELEBRITY PITCH remains a part of Applicant’s mark, consumers are
likely to focus on the TANK portion of Applicant’s mark. See Procter & Gamble Co. v.
Johnson & Johnson, 485 F.Supp. 1185, 1197 (SDNY 1979) (“When arbitrary or
fanciful marks are involved, the distinctiveness of the marks will make the public
more conscious of similarities than differences. ... In contrast when common words
are involved ... the degree of difference rather than the degree of similarity is likely
52 Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 1340 (Fed. Cir. 2004)
(defining an arbitrary mark as a “known word used in an unexpected or uncommon way”).

Opposition No. 91289684
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to be more noticeable.”), aff’d without opinion, 636 F.2d 1203 (2d Cir. 1980). We find
that the marks would convey the same connotation in connection with reality
programs relating to business topics with regard to the word TANK, and the
additional words in Applicant’s mark simply provide more information as to a feature
of the services.
If a portion of both marks is the same, then the marks may be confusingly similar
notwithstanding some differences. See, e.g., In re Charger Ventures LLC, 64 F.4th
1375, 1382 (Fed. Cir. 2023) (“an additional word or component may technically
differentiate a mark but do little to alleviate confusion”). The overall commercial
impression conveyed by the marks is similar and likely to be the same for many
consumers. See e.g., Hewlett-Packard Co., 281 F.3d at 1266 (holding that PACKARD
TECHNOLOGIES (with TECHNOLOGIES disclaimed) and HEWLETT PACKARD
differ in appearance and sound, but the marks convey a similar commercial
impression in their entireties since the dominant portion of Packard Press’s mark is
identical to a prominent portion of HP’s HEWLETT PACKARD marks; consumers
familiar with the HEWLETT PACKARD marks and HP’s technology-based goods and
services would likely associate the PACKARD TECHNOLOGIES mark in some way
with HP).
We find 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.

Opposition No. 91289684
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F. Any Other Established Fact Probative of the Effect of Use
The thirteenth DuPont factor examines “any other established fact probative of
the effect of use.” DuPont, 476 F.2d at 1361.
Bad faith, or intent to confuse, falls under the thirteenth DuPont factor. L.C.
Licensing Inc. v. Berman, No. 91162330, 2008 TTAB LEXIS 756, at *20. An inference
of bad faith “requires something more than mere knowledge of a prior similar mark.”
Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1565 (Fed. Cir. 1987)
(awareness of plaintiff’s mark through trademark search and opinion of counsel that
the mark was available notwithstanding plaintiff’s mark was not sufficient for an
inference of bad faith). A finding of bad faith must be supported by evidence of an
intent to confuse, rather than mere knowledge of another’s mark or even an intent to
copy. See, e.g., Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 117 (2d
Cir. 2009) (“[T]he ‘only relevant intent is intent to confuse. There is a considerable
difference between an intent to copy and an intent to deceive.”’) (citation omitted).
Opposer argues that “[t]he evidence here strongly supports finding an intent on
Applicant’s part to trade upon the fame and goodwill of the Shark Tank brand.”53
Opposer points to Applicant’s earlier adoption of COMMUNITY SHARK TANK and
late withdrawal (two months) after the opposition was filed as evidence of bad faith.54
Opposer also points to Applicant’s failure to seek legal counsel after the withdrawal
53 49 TTABVUE 39.
54 49 TTABVUE 40.

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of the COMMUNITY SHARK TANK mark since Applicant subsequently filed the
CELEBRITY PITCH TANK mark.55
In his deposition testimony, Applicant explains his earlier application for
COMMUNITY SHARK TANK:56
A. But at the time, when we applied for the trademark of Community
Shark Tank, we thought that it was a generic name ·because of its use.
And we were told that if we put community in front of the name Shark
Tank, it would be sufficient, and that’s what we did. And our whole
premise was that this name has been out, at the time, I think for about
two decades. So we thought it was generic, it was common use. But to
avoid any dilution, we put Community Shark Tank in front of it, and the
trademark office moved the application forward. That’s when your team
contacted us and stated that, hey, you can’t use that name. It’s a dilution
of our brand, and we dropped it. But the concept itself is what thousands
of organizations are doing across the country and across the world. They
are doing pitch competitions, and so that’s – that’s what we -- we latched
onto is that, you know, pitch competition is a trending thing around the
world. And so that’s why we wanted to do that.
Q. You -- you made reference to a generic name. What’s your
understanding of what a generic name is?
A. generic name for a brand that has been out in the social atmosphere
or in the common marketplace and it's just common. When people say,
hey, I want to --you know, let's do a Shark Tank or like a Shark Tank or
·whatever, it’s just like an unto. So the name has been so generally used
that it's become sort of a common thing within the social fabric of the
culture.
Q. And you know that that use originates with the show Shark Tank,
right?
A. Yeah.
Q. And when you say do a Shark Tank, you’re talking specifically about
some kind of pitch for start-ups, right?
55 49 TTABVUE 38-41.
56 Lynch Discovery Deposition, Third NOR, 15 TTABVUE 10-13.

Opposition No. 91289684
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A. Yeah. Because they're -- like, for example, from a cultural perspective,
it’s familiar because it’s been so used in the culture so much people
immediately understand what you’re talking about. And it’s just – that’s
just the way people talk. You know, it’s just a general, generic term.
Q. Now, you talked about two decades of use. What·-- of common use.
What kind of use are you referring to when you -- when you say that?
A. Just the television show being out there on a weekly basis. It had
been a very, very popular television show. It has a lot of use and has
become sort of a fabric -- a knitted part of the fabric of the culture.
Applicant’s interrogatory response (answer in original in red color font) is consistent
with the deposition testimony:57
As indicated by Applicant’s discovery deposition testimony and interrogatory
response, Applicant believed SHARK TANK is generic. Additionally, Applicant’s
declaration states that the word TANK “is a common cultural term” and he had no
intent to trade on Opposer’s goodwill in the SHARK TANK mark.58
57 Second NOR, 14 TTABVUE 21.
58 Lynch Declaration, paragraphs 4, 6, 46 TTABVUE. “[W]hile evidence of bad faith adoption
typically will weigh against an applicant, good faith adoption typically does not aid an
applicant attempting to establish no likelihood of confusion.” Eveready Battery Co. v. Green
Planet, Inc., No. 91180015, 2009 TTAB LEXIS 490, *16.

Opposition No. 91289684
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Applicant states: “I made an honest mistake …. I selected ‘Community Shark
Tank’ as the official name of the venture. Once Sony opposed the use of the name …
I withdrew the application.”59 “I later selected and used CELEBRITY PITCH TANK
in good faith, without any intent to trade on Opposer’s good will.”60
The following admission is also in the record:
Admit that Applicant selected Applicant’s Mark in order to make
reference to, or call to mind, Opposer’s SHARK TANK Television
Program.61
Although there has been prior interaction with Opposer in connection with the
now withdrawn COMMUNITY SHARK TANK application, there is no requirement
Applicant seek legal advice in filing a subsequent trademark application. And the
redacted deposition transcript does not fully develop Applicant’s intent in adopting
CELEBRITY PITCH TANK.
However, as noted, Applicant admits that he “selected Applicant’s Mark in order
to make reference to, or call to mind, Opposer’s SHARK TANK Television Program.”
“When matter has been conclusively established under Rule 36, it is taken as a
judicial, rather than an evidential, admission that ‘cannot be rebutted by contrary
testimony or ignored by the [Board] simply because it finds the evidence presented
by the party against whom the admission operates more credible,’ and this ‘applies
equally to those admissions made affirmatively and those established by default, even
if the matters admitted relate to material facts that defeat a party’s claim.’” Learning
59 Id., paragraph 5.
60 Id., paragraph 6.
61 Second NOR, no. 8, 14 TTABVUE 16.

Opposition No. 91289684
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Journey Int’l, L.L.C. v. Yongfu, No. 92082654, 2024 TTAB LEXIS 326, at *11 (quoting
Am. Auto. Ass'n (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117,
1120 (5th Cir. 1991)).
Based on Applicant’s admission, we find sufficient evidence in the record to
support a finding of bad faith intent to confuse.
V. Conclusion
As a final step, we “weigh the DuPont factors used in [our] analysis and explain
the results of that weighing.” In re Charger Ventures LLC, 64 F.4th at 1384 (emphasis
omitted).
The parties’ services are very similar, and the trade channels and classes of
consumers overlap. The least sophisticated consumer’s decision to watch a television
or internet reality program might well be made on impulse. Based on Applicant’s
admission, Applicant selected its mark in bad faith with the intent to cause confusion.
The second, third, fourth, and thirteenth DuPont factors weigh in favor of
likelihood of confusion.
The SHARK TANK mark is famous and therefore, commercially strong, and the
parties’ marks are similar in commercial impression. Therefore, the fifth and first
DuPont factors also weigh in favor of likelihood of confusion. The seventh and eighth
DuPont factors are neutral.
We find confusion likely.62
62 We need not consider the issue of likelihood of confusion with respect to Opposer’s pleaded
Registration No. 5261312 (Class 35) in view of our finding of likelihood of confusion with

Opposition No. 91289684
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Decision: Opposition No. 91289684 is sustained on the basis of likelihood of
confusion with the mark in Registration No. 3716584, and registration to Applicant’s
application Serial No. 97800517 is refused.
respect to Registration No. 3716584 (Class 41). See, e.g., Multisorb Techs. Inc. v. Pactiv Corp.,
No. 92054730, 2013 TTAB LEXIS 616, *3.
Because we have found for Opposer on the likelihood of confusion claim, we need not reach
the merits of the dilution claim. Id.