Friday, May 13, 2022

In Light of Third-Party Use of "CLOVER," TTAB Reverses Two Section 2(d) Refusals of CLOVER CLUB Marks For Restaurant Services, But Affirms Two

In a 47-page opinion discussing many third-party uses of CLOVER and CLOVER-formative marks, the Board affirmed two and reversed two Section 2(d) refusals of Loew's Hotel's applications to register four marks for ""Bar and restaurant services, namely, providing cocktails and small dishes in an outdoor lounge setting attached to a high-end hotel." The Board found confusion likely between the cited mark CLOVER for restaurant and bar services, and Loew's standard character mark CLOVER CLUB and its stylized or composite mark shown first below; but not likely with regard to the marks shown second and third below. [Loew's disclaimed CLUB, EST. 2019, and MADE IN TEXAS in the marks.] In re Loew’s Hotels, Inc., Serial Nos. 88425357, 88433338, 88433342, and 88433348 (May 11, 2022) [not precedential] (Opinion by Judge Christopher Larkin).

The Board found that applicant's services were encompassed within the broad recitation of services in the cited registration. Consequently, the Board presumed that the involved services are offered in the same, normal channels of trade, to the same classes of consumers.

Turning to the sixth DuPont factor, the number and nature of similar marks in use for similar services, Loew's argued that the word "CLOVER" is in common use in connection with restaurants, food and beverages, lounges, pubs, cafes, and other drinking and dining establishments. It provided evidence of 27 such uses, and pointed to Juice Generation as the most closely analogous case. There, the CAFC held that the Board had given inadequate consideration to a similar number of third-party uses of PEACE & LOVE for restaurant services and food items as evidence of the weakness of the opposer's marks.

The Board noted that although Loew's evidence "tells us little" about the extent of exposure and use of the third-party marks, the CAFC held in Juice Generation that such evidence is still "relevant to show that a term 'may have a normally understood and well-recognized descriptive or suggestive meaning leading to the conclusion that that [term] is relatively weak'" and that "'consumers have been educated to distinguish between marks on the basis of minute distinctions.'"

"Evidence of third-party use can be 'powerful on its face' even though 'specifics' as to the extent and impact of use of the third-party marks may not have been proven."

As to the similarity of the third-party marks to the Loew's marks, the Board looked for guidance from the Juice Generation decision. There, all of the third-party marks contained "peace" and "love" followed by a third, product-identifying term, and most of them were three-word phrases. Only a portion of the collection of marks cited by Loew's had that high degree of similarity: three consisted of CLOVER alone, and two of THE CLOVER. Other marks included other words. In total, ten of the marks were identical or most similar to the CLOVER mark, but  the CLOVER-formative marks were still probative. The Board concluded that CLOVER is a weak mark for restaurant services.

With respect to the similarity of the involved marks, the Board compared the marks in their entireties, giving greater weight in that comparison to the word CLOVER in applicant's marks, since that is the dominant portion of the marks. It unsurprisingly found CLOVER CLUB to be quite similar to the cited mark CLOVER. As to the second mark, the Board found that neither the disclaimed word CLUB nor the disclaimed phrase "Estd. 2019" sufficiently distinguished the mark from the cited mark

As to the third and fourth marks, the Board found that the "tongue-in-cheek phrase MADE IN TEXAS imbues the CLOVER CLUB-based mark with a geographic connotation, and a connotation of club-type food that would be typical of Texas." And so the Board concluded that the first DuPont factor favored Loew's for these two marks.

Finally, Loew's dubiously argued that the customers for restaurant servicers are "sophisticated and savvy in selecting their food and dining choices." However, there was no evidence to support that argument. Loew's recitation of services is limited to a "high-end hotel," and the Board observed that this is "to say the least, a unique identification of services, but not one that includes "high-end" restaurant services or prices." Loew's "small plates" are priced between $8 and $24, and its beverages range in price from $6 for a beer to $28 for whiskey. "They strike us as prices that could be paid by a substantial portion of the consuming public, not just patrons of expensive restaurants." 

Loew's own description of its restaurant is directed to the general public, not simply to guests at a "high-end" hotel: for example, it solicits people who want to have "[b]eers with friends." In short, the least sophisticated purchaser of Loew's services will exercise nothing more than ordinary care in the purchasing decision. 

And so, the Board reversed two of the refusals but affirmed the other two.

Read comments and post your comment here.

TTABlogger comment: So Loew's winds up with two narrow registrations for narrowly recited services. It apparently has no rights in the term CLOVER CLUB alone. Not exactly a resounding victory, but as they say: you win some, you Loew's some.

Text Copyright John L. Welch 2022.

Thursday, May 12, 2022

TTAB Affirms Refusal of "PVPW" for Delivery of Bottled Water, Due to Unacceptable Specimens of Use.

Finding that Applicant's specimens of use did not show a direct association of the proposed mark with the recited services, the Board affirmed a refusal to register PVPW for "water supplying, namely, delivery of bottled water to homes, offices and stores." The purported mark is molded into the bottom of applicant's water bottles (see photo below right) and there was no evidence that purchasers would encounter the mark and perceive it as a source indicator. In re Peak Valley Pure Water, LLC, Serial No. 87686193 (May 10, 2022) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

Examining Attorney Ingrid C. Eulin contended that the letters molded on the bottles would be visible to the consumers only "after purchase, delivery and installation of the purchased bottled water in the water dispensing unit.” She noted that the mark PEAK VALLEY and not PVPW appears on applicant's website, and also that entities in the water delivery field do not typically employ terms molded on the bottom of water bottles as source indicators.

Applicant argued that because the bottles are used to deliver the water, there is a necessary direct association between the mark and the services so that the mark on the bottles constitutes an acceptable specimen, particularly since the bottles may be “stored and transported on [their] side” and “may be inverted during use” with water dispensers.

The Board agreed with applicant that goods used in the rendering of services may display the mark and may serve as source indicators for the services. Furthermore, the record showed that water bottles used in performing the services display the mark for the delivery services. However, the Board disagreed with the contention that consumers will find that the molded term PVPW indicates the source of the water delivery services.

Applicant’s business involves not just water delivery but the sale of the same bottles used in delivery. Applicant’s bottles display prominent PEAK VALLEY labels and its website advertises “Delivery Services Peak Valley Water 5 gal. bottles.” Competitors in the water delivery industry display their marks on prominent water bottle labels and their website advertisements. There is no evidence that the mark is perceptible to the prospective consumer when the water bottles are being delivered. There is no evidence that consumers perceive, or even encounter, molded marks on the bottom of water bottles as indicators of source for water delivery services using the bottles. Based on these facts, we agree that the PWPV mark does not have a direct association with water delivery services.

The Board distinguished the Eagle Fence (alternately colored strands of wire) and Red Robin (bird costume) cases, where the marks weres clearly viewable during performance of the respective services (fence rental services and entertainment services).

On this record and in the absence of any evidence that the prospective consumer would encounter the PVPW mark on the bottom of the bottle and perceive PVPW as indicating the source of the water delivery service, we find that Applicant’s bottles with a mark molded on the bottom have no direct association with Applicant’s water delivery services, and so are not acceptable specimens.

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TTABlogger comment: Would you think that four letters molded into the bottom of a water bottle would be a trademark? I would likely think it's some kind of environmental code or maybe a product/model number.

Text Copyright John L. Welch 2022.

Wednesday, May 11, 2022

Precedential No. 13: TTAB Reverses Disclaimer Requirement of "KID" in two Lego Marks Found to be Unitary

In what may be one of the biggest wastes of time in the history of trademark jurisprudence, the Board reversed the USPTO's requirements that LEGO disclaim the word KID, in both Latin and non-Latin characters, in the two marks shown below, for various goods and services primarily aimed at children. The Board found the two marks to be unitary, and therefore disclaimer of KID was not required. Now, does anyone think that Lego, by avoiding these disclaimers, will be able to stop others from using the word KID in connection with child-related goods and services? What's the point? In re Lego Juris A/S, 2022 USPQ2d 443 (TTAB 2022) [precedential] (Opinion by Judge Cynthia C. Lynch).

The Board observed that a composite mark is unitary if the elements of the mark "are so merged together that they cannot be viewed as separable elements, . . .  rendering a disclaimer unnecessary." In re EBS Data Processing, Inc., 212 USPQ 964, 966 (TTAB 1981).

Several factors inform the unitariness analysis: the physical connection of the potentially unregistrable component to other elements of the proposed mark by lines or other design features; the relative location of the respective elements of the proposed mark; and the significance of the terminology as used on or in connection with the goods or services. Dena v. Belvedere, 21 USPQ2d at 1052; see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1213.05 (July 2021).

The Board found that, in each mark, the elements "merge together in a way that conveys a unitary impression." It perceptively noted that the words MONKIE and KID are physically connected to the design of a monkey’s head. The Board was unmoved by the examining attorney’s argument that the monkey head "functions as a space" that separates those two words.

Connecting elements with a design feature tends to show unitariness. Dena v. Belvedere, 21 USPQ2d at 1052. This conclusion is bolstered by the curled tail over the letter I in KID, which gives the sense that the monkey’s body is hidden behind the word KID, with the tail peeking over the top. A similar tail design also appears at the bottom right, connected to the Chinese lettering joined to the edge of the D in the word KID and to the edge of the underlining beneath MONKIE KID and the monkey head design.

What about the fact that the words MONKIE and KID are in different colors? Again, the Board was unimpressed: "The monkey head design incorporates both red and yellow, and this color scheme, like the design itself and its placement, serves to bring the words MONKIE and KID together, reinforced by the underlining of both words and the design in alternating red and yellow. We find the elements of the mark as a whole are 'so merged together that they cannot be regarded as separate.' Dena v. Belvedere, 21 USPQ2d at 1052."

The Board concluded that the monkey-related design elements and the connection of the various features "give the impression of a 'monkey kid' creature." Consumers are likely to understand KID, and its foreign equivalent, to refer to that MONKIE KID creature. In short, "a registrable term and an unregistrable term are joined together [with design elements] so as to form a mark which has a distinct non-descriptive meaning of its own …." In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983).

And so, the Board reversed the refusals to register.

Read comments and post your comment here.

TTABlogger comment: Why precedential? What's new here? FWIW, I think the use of red for the word KID makes it stand out with a separate commercial impression.

Text Copyright John L. Welch 2022.

Tuesday, May 10, 2022

TTAB Considers Pilot Pretrial Conference Program

In another step toward making TTAB proceedings as complicated and expensive as civil litigation, the TTAB is considering a pilot program "for holding Final Pretrial Conferences in certain inter partes (trial) cases to better manage and streamline opposition and cancellation proceedings that proceed to trial. The goal of the pilot is to save time and resources of parties and the TTAB, and to foster the effective and efficient presentation of evidence." Announcement and additional discussion here.

Under the proposed program, the Board would focus on cases "identified as likely to generate unnecessarily large or disorganized and unwieldy records, or which the TTAB otherwise determines, based on the circumstances of individual cases, to be appropriate for inclusion in the pilot program."

For this pilot program to work effectively, prior to the FPC each party would provide each other party more pre-trial information than is presently required by TTAB pretrial disclosure requirements. For example, parties would provide lists of Notice of Reliance evidence and lists of all testimony/exhibits planned for trial use, which are not otherwise required. The parties also would be required to state all their objections to expected evidence of adverse parties, with limited exceptions. The TTAB, in directing the parties to prepare for the FPC also would emphasize the parties’ consideration and adoption of stipulations regarding evidence to be introduced and considered, as well as stipulations of fact.

A model format for a final pretrial conference order is provided here. If you would like to comment on this proposal, you may do so at 

 Read comments and post your comment here.

TTABlogger comment: I think the Board should look to ways of streamlining cases early on, for example by holding an early conference to discuss issues, getting rid of bogus fraud claims at the git-go, and limiting discovery both in scope and in length of the discovery period.

Text Copyright John L. Welch 2022.

Monday, May 09, 2022

TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?

The Board is running at an affirmance rate of about 96% for Section 2(d) appeals. Here are three more for your consideration. How do you think they came out? [Results in first comment].

In re Eggtronic Engineering S.P.A., Serial No. 79290799 (April 29, 2022) [not precedential] (Opinion by Judge Cindy B. Greenbaum) [Section 2(d) refusal of ECOVOLTAS for "AC/DC power converters; Electric power converters; Integrated circuits," in view of the registered mark ECOVOLT for "Induction voltage regulators; Electric voltage transformers; Voltage stabilizers; Voltage regulators."]

In re Nextiva, Inc., Serial No. 88367632 (May 3, 2022) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of NEXT LEVEL for "entertainment services, namely, providing podcasts in the field of business, personal growth and professional growth," in view of the registered mark NEXT LEVEL DAILY for for "electronic downloadable publications in the nature of articles and video tutorials in the fields of productivity, organization, and planning" in International Class 9 and "providing a website featuring blogs and non downloadable publications in the nature of articles and video tutorials in the field of productivity, organization, and planning; On line journals, namely, blogs featuring articles and video tutorials in the field of productivity, organization, and planning."]

In re Wellory, Inc., Serial No. 88789909 (May 4, 2022) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) refusal of WELLORY for "Downloadable mobile applications for connecting users and experts via messaging in the field of nutrition; none of the aforesaid relating to fitness, fashion, cosmetics or skincare" and "Nutrition counseling; none of the aforesaid relating to fitness, fashion, cosmetics or skincare," in view of three registered marks:  

  • WELLORIA for "providing online publications, namely newsletters and articles, in the fields of health, fitness, and lifestyle;”  
  • WELLERY for "retail department store services; on-line retail department store services; retail store services in the nature of pop-up shops in the fields of fashion, beauty, wellness and skin care" and "health spa services for health and wellness of the body and spirit; cosmetic skin care services and salon services, namely, manicures, pedicures, facials, brow shaping, makeup services, massages, eye lash extensions and skin care treatments, tissue contouring and cellulite improvement;" and  
  • WELLTORY for "downloadable software in the fields of healthcare, benefits programs, employee productivity and risk management, namely, software featuring tools and resources for users to monitor and manage stress, fitness, health, wellness and energy; downloadable software featuring tools and resources for users to monitor and manage stress, fitness, health, wellness and energy."] 


Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHAs?

Text Copyright John L. Welch 2022.

Friday, May 06, 2022

TTABlog Test: Is AUBURN Deceptively Misdescriptive of Faucets?

The USPTO refused to register the proposed mark AUBURN for "Plumbing products, namely, faucets," finding the mark to be deceptively misdescriptive of the goods under Section 2(e)(1). The examining attorney contended that third parties use the auburn color on their plumbing faucets and so consumers would falsely believe that applicant’s faucets are in the color auburn. The applicant argued that "auburn" has other meanings, and that consumers would not believe its faucets were auburn colored.  How do you think this appeal came out? In re Delta Faucet Company, Serial No. 88814907 (May 4, 2022) [not precedential] (Opinoin by Judge George C. Pologeorgis).

The test for deceptive misdescriptiveness under Section 2(e)(1) has two parts: (1) the matter sought to be registered must misdescribe the goods or services; and (2) consumers must be likely to believe the misrepresentation.

Applicant argued that, although "auburn" is the name of a color, it is also the name of a well known university and city in Alabama, and no one would believe that an arbitrary faucet collection would be associated with those meanings. Nor would a consumer seek out an "auburn" colored faucet.

The Board found that the term "auburn" is "plausibly merely descriptive" of applicant’s goods, namely, the color or finish of the faucets. However, nothing in the Internet evidence described the color or finish of any faucets as "auburn." "Instead, the faucets appear in 'oil rubbed bronze,' 'copper reddish brown ,' or 'reddish brown.'" Therefore, the evidence did not show "that the consuming public has been accustomed or exposed to seeing faucets for sale."

[T]he evidence submitted by the Examining Attorney does not establish that the term auburn indicates any particular characteristic of this nature. On this record, we do not believe reasonably prudent purchasers are apt to be deceived.

And so, the Board reversed the refusal.

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TTABlogger comment: I think the other meanings of "auburn" were more significant than the lack of evidence of auburn-colored faucets.

Text Copyright John L. Welch 2022.

Thursday, May 05, 2022

Infringement Plaintiff May Rely on Priority Date of Madrid Protocol Extension of Protection to Establish Priority

In what appears to be a case of first impression, the Ninth Circuit ruled (perhaps unsurprisingly) that under the Madrid Protocol, a foreign applicant who obtains a registration without showing actual use in the United States has a right of priority, as of the relevant constructive use date, over another who first used the mark in the United States. Once that registrant begins using the mark, it may bring an infringement application based on its superior right of priority. Lodestar Anstalt v. Bacardi & Co., No. 19-55864, 2022 WL 1180767 (9th Cir. Apr. 21, 2022).

In 2011, Plaintiff Lodestar obtained its extension of protection for the mark UNTAMED for whiskey, rum, and other distilled spirits. In 2013, Barcardi began a marketing campaign using the slogan "Bacardi Untameable." Lodestar then began use its mark in the United States in 2014.

Lodestar won the priority battle but lost the trademark infringement war. The court carefully parsed the relevant sections of the Trademark Act as well as court precedents involving Section 44 of the Act (for example, the "Lemon Tree" (SCM v. Langis) and "Fina" (American Petrofina v. Brown) cases). It found the Section 44 cases to be "persuasive in the analogous context of the Madrid Protocol." The court found additional support in Professor McCarthy's "persuasive analogy" between the "Dawn Donut" rule and the "Fina" case. In sum, to repeat:

[O]nce a registrant under the Madrid Protocol actually begins using the registered mark within the U.S., it is then entitled to assert an infringement claim, based on its statutory priority of right, against those who may have used the mark after the registrant’s constructive use date but before the registrant’s actual use in the U.S.

As to the issue of likelihood of confusion, the court ruled that Lodestar's use of the UNTAMED mark on its "Untamed Revolutionary Rum" product was not a bona fide use of its mark, but rather an attempt, in light of Bacard's new campaign, to reserve the UNTAMED mark for future use. As to Lodestar's use of the UNTAMED mark on the back of bottles of its "The Wild Geese Soldiers & Heroes" rum (in 2014), Lodestar failed to prove a likelihood of confusion.


Affirming the district court's entry of summary judgment, the court agreed that the manner in which the marks are used weighed against a finding of likely confusion, noting that Lodestar's mark appeared on the back of the bottle "below a considerable amount of writing," and that both parties used the involved marks as tag lines subordinate to their house marks.

Although the district court erred on several of the likelihood of confusion factors, the court concluded that no reasonable trier of fact could find that confusion is "probable" and not merely "possible."

Although the commercial strength of Bacardi’s campaign weighs in favor of a likelihood of confusion with respect to Lodestar’s competing rum, which bore a similar suggestive mark of which Bacardi was culpably aware, these factors are overwhelmingly offset by the fact that consumers would “encounter the trademarks differently in the marketplace,” the companies’ “marketing efforts [were] concentrated in different media,” and Lodestar “presented no evidence of actual confusion” among consumers of its products.

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TTABlogger comment: What is surprising is that the Madrid Protocol priority issue never came up before.

Text Copyright John L. Welch 2022.

Wednesday, May 04, 2022

Is "Make Shift Happen" (Stylized) Confusable With "Shift Happens!" (Stylized) for T-Shirts?

The USPTO refused to register the mark MAKE SHIFT HAPPEN in stylized form (shown first below) for "Hats; Hoodies; Shirts and short-sleeved shirts; T-shirts; Graphic T-shirts," finding confusion likely with the registered mark SHIFT HAPPENS! in stylized form (second below) for "Clothing; namely, bathrobes, hats, and t-shirts." The goods are legally identical in part, but what about the marks? Applicant Marissa Paine argued that the cited mark is weak in light of six existing registrations for SHIFT-formative marks. The Board found that both marks "are a play on the common and informal colloquial expression 'SHIT HAPPENS, and it took judicial notice of the definition of the phrase 'shit happens,'" which is "defined as used to say that bad things happen as part of life and cannot be prevented.” How do you think this came out? In re Marissa Paine, Serial No. 90039694 (May 1, 2022) [not precedential] (Opinion by Judge George C. Pologeorgis).

Since the goods overlap and there are no restrictions in the identifications of goods, the Board must presume that the overlapping goods travel in the same trade channels to the same classes of consumers. Moreover, when the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

Applicant provided no evidence of third-party use of SHIFT HAPPEN(S) or SHIFT-formative marks. The six third-party registrations are "a relatively small number compared to the number of such marks in cases that have found weakness based on those marks."

The third party registrations submitted by Applicant have little, if any, probative value because (1) they are for marks that have differing connotations and overall commercial impressions w hen compared to the cited mark, i.e., SHIFT, SHIFT TEAM and SHIFT SHOP, or (2) they list goods or services that are sufficiently unrelated to the goods identified in the cited registration, i.e., SHIFT HAPPENS for "providing online newsletters in the field of advertising, marketing and public relations" and "motivational and empowerment seminars."

The Board concluded that Applicant Paine failed to show that the cited mark "has been so extensively adopted by third-party registrants to allow Applicant’s proposed mark to register."

As to the marks, the Board found them to be "similar in connotation and commercial impression not only because both marks are a play on the common and informal colloquial expression 'SHIT HAPPENS,' but also because the marks are visually and aurally similar in that they both include the terms SHIFT and HAPPEN(S)." Neither the use of the plural "happens" nor the exclamation point in the cited mark altered the similarity of the marks. Although the stylizationd of the marks diffes, "it is the literal portion of a mark, rather than any design or stylization feature, which is more likely to be remembered and relied upon by customers in calling for the goods."

Further, even if potential purchasers realize the apparent differences between the marks, they could still reasonably assume, due to the overall similarities in sound, appearance, connotation, and commercial impression in the respective marks, that Applicant’s goods sold under the proposed mark constitute a new or additional product line from the same source as the goods sold under the registered mark with which they are acquainted or familiar, and that Applicant’s mark is merely a variation of, or derivative of, Registrant’s mark.

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Should the different stylizations carry more weight in the 2(d) analysis?

Text Copyright John L. Welch 2022.

Tuesday, May 03, 2022

TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?

Thus far in 2002, the Board has affirmed 77 of the first 80 Section 2(d) refusals it has considered on appeal. Here are the latest three appeals for your consideration. [Results in first comment].

In re Aubrac Holdings, Inc., Serial No. 88586817 (April 29, 2022) [not precedential] (Opinion by Judge Melanye K. Johnson). [Section 2(d) refusal of ULTIMATE AMMUNITION for, inter alia, "Ammunition; Ammunition for firearms; Rifle ammunition; Shells for large size ammunition; Shotshell ammunition; Small arms ammunition," in view of the registered mark ULTIMATE for "ammunition; shotgun shells; shotgun shell shot."]

In re Nano Magic, LLC, Serial No. 88879556 (April 29, 2022) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of POWERED BY SCIENCE. WORKS LIKE MAGIC. for "cleaning preparations, namely, cleaning solutions and disposable wipes impregnated with cleaning solutions for the cleaning of surfaces, glass, porcelain, ceramic, mirrors, doors, vehicles, household items and devices, and electronic devices; all-purpose cleaning preparations," in view of the registered mark WORKS LIKE MAGIC POWERED BY SCIENCE for "deodorants for refrigerators; deodorizing products, namely, all purpose deodorizer preparations for household, commercial and industrial use."]

In re Hella Gutmann Solutions GmbH, Serial No. 79135477 (April 29, 2022) [not precedential] (Opinion by Judge Cynthia C. Lynch). [Section 2(d) refusal of HGS DATA for "Updating, systematization, collection and maintenance of technical and diagnostic data for motor vehicles for the purpose of assisting motor vehicle mechanics to maintain and repair motor vehicles" [DATA disclaimed], in view of the registered marks HGS and the word-plus-design mark shown below, for, inter alia, "compilation of information into computer databases" and "systemization of information into computer databases" [GLOBAL SOLUTIONS] disclaimed.]

Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHAs?

Text Copyright John L. Welch 2022.

Monday, May 02, 2022

TTAB Posts May 2022 (Video) Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled five oral hearings for the month of May 2022. The hearings will be held via video conference. Briefs and other papers for each case may be found at TTABVUE via the links provided.

May 12, 2022 - 12 PM: 
In re Flexa Network Inc., Serial No. 90002396 [Section 2(d) refusal of FLEXA CAPACITY for "Providing electronic processing of collateralized cryptocurrency payments via a secure global computer network; collateralized cryptocurrency exchange services," in view of the registered mark CAPACITY for, inter alia, "electronic payment, namely, electronic processing and transmission of bill payment data" and "exchange services in the nature of execution, clearing, reconciling and settlement of trade and financial transactions via a global network involving . . . securities . . . and/or related financial instruments."]

May 17, 2022 - 11AM: In re Layla Sleep, Inc., Serial No.88359361 [Refusal to register FLIPPABLE FIRMNESS for "Online retail store services featuring bed frames, foundations, mattresses, pillows, toppers, and bed sheets" on the ground that the specimen of use does not show use of the mark in connection with the services identified in the application.]

May 18, 2022 - 1 PM: Evolutionary Guidance Media R&D Inc. v. Cyberman Security, LLC AKA The CyberHero Adventures: Defenders of the Digital Universe, Oppositions Nos. 91249427 and 91253845 [Section 2(d) oppositions to registration of CYBERHERO for video game software and accessories and THE CYBERHERO ADVENTURES DEFENDERS OF THE DIGITAL for "comic books," in view of the registered mark CYBERHERO LEAGUE and the common law mark CYBERHERO for educational gaming services and toys, games, and gaming materials and devices.]

May 19, 2022 - 12 PM: In re Jeanette Conrad-Ellis, Serial No. 90002764 [Section 2(d) refusal of THE BLACK DIAMOND SERIES for "a series of fiction books for teen girls, excluding cartoon science fiction books and comic books" [SERIES disclaimed] in view of the registered mark THE BLACK DIAMOND EFFECT for a "cartoon science fiction books and comic books."]

May 25, 2022 - 1 PM: In re Walrus Rodeo LLC, Serial No. 88728723 [Section 2(d) mere descriptiveness refusal of GOLDN PAYDIRT for "Gold; Gold bullion; Gold ore; Gold and its alloys; Gold, unworked or semi-worked; Gold, unwrought or beaten; Palladium; Palladium and its alloys; Precious metals; Precious metals and their alloys; Precious metals, unwrought or semi-wrought; Silver; Silver bullion; Silver ore; Alloys of precious metal; Platinum; Unworked or semi-worked gold" and "Mining exploration and mineral exploration services in the field of metals; Geological prospecting."]

Read comments and post your comment here.

TTABlog comment: Any predictions? See any WYHAs?

Text Copyright John L. Welch 2022.