Friday, February 24, 2017

TTAB Test: Which Two of These Four Mere Descriptiveness Refusals Were Reversed?

Two of these four Section 2(e)(1) refusals were reversed. Put on your TTAB judicial robes and see if you can figure out how these recent appeals came out. [Answer will be found in first comment].

In re Blue Equity Int'l, LLC, Serial No. 86623172 (February 21, 2017) [not precedential]. [Requirement for disclaimer of BEST in the mark shown below, for various entertainment-related services].

In re BPI Sports, LLC, Serial No. 86584732 (February 21, 2017) [not precedential]. [Section 2(e)(1) refusal of BEST WORKOUT, in standard characters and with WORKOUT disclaimed, for "dietary and nutritional supplements"].

In re Fujarek , Serial No. 76709445 (February 17, 2017) [not precedential]. [Section 2(e)(1) refusal of VOICE for "broadcasting services, namely, radio and television broadcasting by satellite and mobile phones, via a global computer network"].

In re Fáilte Ireland, Serial No. 86975779 (February 14, 2017) [not precedential].Section 2(e)(1) refusal of DUBLIN PASS for "Advertising services; television and radio advertising; public relations; promoting the goods and services of others through the distribution of discount cards" and for "Information services for entertainment, recreation and education" [PASS disclaimed]].

Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHA?s here?

Text Copyright John L. Welch 2017.

Thursday, February 23, 2017

CORN THINS and RICE THINS Merely Descriptive But Not Generic, Says TTAB

The Board sustained oppositions to registration of CORN THINS for popped corn cakes, and RICE THINS for rice cakes [CORN and RICE disclaimed], find the marks to be merely descriptive of the goods and lacking in acquired distinctiveness. However, the Board dismissed Opposer Frito-Lay's claims that the marks are generic, or so descriptive as to be incapable of acquiring distinctiveness. Frito-Lay North America, Inc. v. Real Foods Pty., Ltd., Oppositions Nos. 91212680 and 91213587 (February 21, 2017) [not precedential].

Genericness: The evidence of record included dictionary definitions, uses of the term "thin" by the parties and by third-parties in connection with snack products, newspaper and magazine articles referring to trademarks containing the word "thin," recipes, emails from applicant's customers, third-party registrations of marks containing the word "thin," some with the word disclaimed, and survey and other expert evidence.

The Board concluded that opposer had failed to carry its burden to prove genericness by a preponderance of the evidence. "[T]he evidentiary record presents a record with mixed uses of CORN THINS and RICE THINS, as well as THINS, in an trademark and non-trademark form" And so the Board dismissed the genericness claim.

Mere Descriptiveness: The Board found that a consumer will understand immediately from applicant's marks that the goods are thin in cross section and made primarily of rice and corn. The word "thins" has been used with food products that are thin in shape, and the ubiquity of use established that "thins" is not inherently distinctive for those products. The evidence showed that "thins" describes a characteristic of the goods, i.e., its thin shape. There was no persuasive evidence to confirm applicant's contention that "thins" is a double entendre, one meaning being the "lightness of the product and its low caloric content."

The Board therefore found the applied-for marks to be merely descriptive of the goods.

Acquired Distinctiveness: The Board found the applied-for marks to be highly descriptive of a feature or characteristic of the marks. According to the Board, applicant "has done little or no advertising," and its sales figures "while not insignificant, are not high." Moreover, the use of the term "thins" is not limited to applicant. Opposer's survey, "despite its problems," still had "some probative value in demonstrating limited recognition of CORN THINS as a mark." The Board therefore agreed with opposer that applicant failed to establish acquired distinctiveness.

The Board, however, did not find the applied-for marks to be so highly descriptive that they could never function as trademarks. [For example, "The Best Beer in America"]. There was limited third-party use of "rice thins" and "corn thins." And so the Board dismissed this claim.

Read comments and post your comment here.

TTABlog comment: How many "thins" do you have to stack together to make a "fat"? BTW this case was handled under the ACR regime. Now that testimony may be submitted by declaration in all cases, will the number of ACR cases decline?

By the way, remember the PRETZEL CRISPS case, which went up to the CAFC and was remanded? Oral argument at the Board was held in June 2016. Still awaiting a decision. Why aren't TTAB oral arguments, like those at the CAFC, recorded and made available?

Text Copyright John L. Welch 2017.

Wednesday, February 22, 2017

TTAB Test: Is PLUM Confusable With BLACKPLUM and/or PLUMDOG for Financial Services?

The USPTO refused registration of the mark PLUM for various advisory and consulting services, including mortgage brokerage, finding the mark likely to cause confusion with the registered marks BLACKPLUM for financial advice and consultancy services, and PLUMDOG for mortgage brokerage. Applicant's services overlap with those of the cited registrations, but what about the marks? How do you think this appeal came out? In re Plum, Inc., Serial No. 86572736 (February 16, 2017) [not precedential].

Of course, the Board presumed that the overlapping services are rendered in the same channels of trade to the same classes of consumers. And although the involved services encompass sophisticated investors, the Section 2(d) determination must be based upon "the least sophisticated potential purchasers." See Stone Lion Capital Partners, 110 USPQ2d at 1163.

As to the cited mark BLACKPLUM, the evidence established that a "black plum" is the common name of a species of plum found in the United States. "Thus, the shared meaning of PLUM and BLACKPLUM engenders a very similar commercial impression." In contrast, the word PLUMDOG has "a very different connotation and commercial impression."

Unlike with BLACKPLUM, the record includes no evidence that PLUMDOG has a particular meaning. Consumers most likely would view the “plum” portion of this mark as a modifier of "dog,' such that, considered in its entirety, the PLUMDOG mark creates a commercial impression of a kind of dog. We find that this differs significantly from the impression created by PLUM alone, even for the same services. *** Overall, we find that PLUM and PLUMDOG differ, especially in connotation and commercial impression.

Applicant pointed to various third-party uses of "plum," but only four were in the relevant field. This limited evidence was insufficient to support applicant's argument that "the word ‘plum’ is not distinctive within the field of finance."

The Board therefore reversed the refusal based on the PLUMDOG registration, but affirmed the refusal in view of the  BLACKPLUM mark.

Read comments and post your comment here.

TTABlog comment: Did you pull out a plum? Or were you barking up the wrong tree?

Text Copyright John L. Welch 2017.

Tuesday, February 21, 2017

TTAB Affirms Refusal to Register Container Shape on Principal Register

Ouch! Well, you can't win them all! The Board affirmed a refusal to register the container shape shown below, for "dairy products, namely, skyr," on the ground that the applied-for mark comprises "a nondistinctive configuration of packaging for the goods." The Examining Attorney had accepted Applicant’s amendment to the Supplemental Register in the alternative, and so the mark will now proceed to registration on the Supplemental Register. In re Icelandic Provisions, Inc., Serial No. 86768287 (February 16, 2016) [not precedential].

The mark consists of the three-dimensional configuration of a container for the goods, the container having substantially the shape of a non-rectangular parallelogram in horizontal cross-section. Examining Attorney Kristina Morris maintained that the configuration was not inherently distinctive and therefore was eligible for registration on the Principal Register only upon a showing of acquired distinctiveness. Applicant Icelandic Provisions contended that the configuration "constitutes inherently distinctive packaging registrable without proof of acquired distinctiveness."

As usual, the Board applied the Seabrook test for determining whether a design is inherently distinctive:

(1) whether the design is a common basic shape or design;
(2) whether the design is [not] unique or unusual in the field in which it is used;
(3) whether the design is a mere refinement of a commonly-adopted and well-known form of ornamentation for the particular class of goods viewed by the public as a dress or ornamentation for the goods; or
(4) whether the design is capable of creating a commercial impression distinct from any accompanying matter.

The Examining Attorney argue that a parallelogram is a basic geometric shape, and that Applicant’s parallelogram-shaped containers are merely a refinement of the square- and rectangular-shaped containers commonly used in the dairy industry. Applicant pointed to the rounded corners and sloped sides of the container as distinguishing and distinctive features.

The Board agreed with applicant that there was no evidence "showing use of the same exact configuration as that used by Applicant." But it found that the evidence submitted by the Examining Attorney showed that "many yogurt and similar dairy products are sold in containers having square, rectangular and oblong shapes, i.e., three-dimensional configurations, having tapered sides and rounded corners."

[P]urchasers and prospective customers for Applicant’s goods would be unlikely to regard its three dimensional configuration as identifying and distinguishing Applicant’s skyr and indicating its source.

Viewing applicant's specimen of use, the Board found that "[t]he wording and design elements applied to Applicant’s container contribute to the overall trade dress, and we see no basis for a finding that the shape of Applicant’s container creates a separable commercial impression."

Prospective customers viewing yogurt and related dairy product containers including those shown in the record and those used for Applicant’s goods, are likely drawn to the products by viewing the prominent word marks, logos and the decorative colors used on the packaging i.e., indicia other than the relatively common geometric shapes of the product containers.

And so the Board affirmed the refusal to register on the Principal Register.

Read comments and post your comment here.

TTABlog comment: If, in considering a container shape, the Board looks to the labeling and other indicia on the container, can any container be inherently distinctive? I.e., won't the consumer nearly always be "drawn to the products by viewing the prominent word mark, logos and the decorative colors?" Is a survey a must in these cases?

Text Copyright John L. Welch 2017.

Sunday, February 19, 2017

Matthew Swyers (The Trademark Company) Excluded from Practice Before USPTO

Michael E. McCabe, Jr. reports (here), at his IP Ethics and Insights blog, that Matthew Swyers, owner of The Trademark Company, has entered into an "exclusion on consent" agreement with the USPTO, by which Mr. Swyers has voluntarily given up the ability to provide U.S. trademark-related legal services for a minimum of five (5) years.

Although Mr. Swyers denied engaging in any wrongdoing, his exclusion on consent comes with a significant caveat: if he ever seeks reinstatement to practice again before the USPTO (which he cannot do for at least five years), the OED Director will conclusively presume for purposes of considering his reinstatement petition both: (1) the allegations in the disciplinary complaint are true; and (2) Mr. Swyers could not have defeated those allegations.

Read comments and post your comment here.

Text Copyright John L. Welch 2017.

Friday, February 17, 2017

TTAB Dismisses 2(d) Opposition to ANTARCTIC ICE MARATHON Due to Failure to Prove Priority

The Board dismissed this opposition to registration of the mark shown below, for clothing and event services [ANTARCTIC ICE MARATHON & 100K and the geographic representation of Antarctica disclaimed], finding that, as to Opposer Marathon Tours' Section 2(d) claim, opposer failed to prove priority for its alleged mark ANTARCTICA MARATHON, and as to its fraud claim, opposer failed to prove, or even allege, an intent to deceive the USPTO. Marathon Tours, Inc. v. Richard Donovan, Opposition No. 91214916 (February 14, 2017) [not precedential].

Opposer Marathon Tours created and organized the Antarctica Marathon in 1995, held in the Shetland Islands. Due to environmental restrictions, only one or two hundred runners participated in any year. Revenues were about $1.3 million in 2007, and about $1.9 million in 2015. Unsolicited media coverage has been limited and sporadic.

Applicant Donovan has been organizing his event since 2006. His races occur in the interior of the Antarctic, and his event has been featured on American media. 

Section 2(d) Priority: Marathon Tours relied on its alleged common law rights to prove priority. It therefore had to prove that its mark was distinctive, either inherently or via acquired distinctiveness, and that it had priority of use. The Board noted that opposer had applied to register ANTARCTICA MARATHON and had claimed acquired distinctiveness under Section 2(f). [The application was blocked by Mr. Donovan's application]. That was an admission by Marathon Tours that its alleged mark was not inherently distinctive.

As to acquired distinctiveness, the Board found ANTARCTICA MARATHON to be highly descriptive, and therefore opposer had a higher burden to show acquired distinctiveness. [Note: the Shetland Islands are not in Antarctica, but the Board declined to consider the misdescriptiveness issue].

Although Marathon Tours began offering the relevant services in 1995, the ANTARTICA MARATHON race did not become a regular and annually-recurring event until 2008. Media recognition consisted of four media articles during the period 1995-2007, all before the race became an annual event. Applicant Donovan, on the other hand, began offering his race in 2006 and has been offering it annually and regularly ever since. It attracted unsolicited media attention from the git-go, and the attention has continued to the present at a scale that far outpaces the media attention for opposer's race.

The Board concluded that Marathon Tours had failed to show both that use of its mark is substantially exclusive and that the mark had acquired distinctiveness. Thus opposer cannot show priority, and its Section 2(d) claim must fail.

Fraud: Marathon Tours alleged that applicant Donovan never operated or conducted its marathon races "in commerce regulated by the United States," and he therefore made a knowingly false statement upon with the USPTO relied.

However, Marathon Tours failed to allege, nor did it offer any proof, that applicant's statements (even if false) were made with the intent to deceive the USPTO. [Applicant Donovan testified that he targets US customers and offers his services in the USA]. Therefore, opposer's fraud claim failed as well.

And so the Board dismissed the opposition.

Read comments and post your comment here.

TTABlog comment: Looks like we have two entities using similar, descriptive marks for nearly the same services. Sounds like the recent CHICAGO STAGEHAND case. But at least there the stagehands were in Chicago.

Text Copyright John L. Welch 2017.

Thursday, February 16, 2017

TTAB Affirms Rejection of New Drawing, Reverses Geographical Refusal of OAK PARK Design Mark for Beer

The Board rejected applicant's attempt to amend the drawing of the mark shown below to delete the words "SACRAMENTO CA," finding that such an amendment would be a material alteration of the mark as filed. However, the Board reversed a Section 2(e)(2) refusal of the original mark for beer because Oak Park of Sacramento, California, is too obscure a location. In re Oak Park Brewing Company, Inc., Serial No. 86329948 (February 14, 2016) [not precedential].

Material alteration: In an application under Section 1(b), an applicant may amend the drawing of the mark if "[t]he proposed amendment does not materially alter the mark." Rule 2.72(b)(2). The general test is whether the mark would have to be republished after the alteration. In short, the new and old versions must create the same commercial impression.

The evidence showed that there are several locations named "Oak Park" in the United States, including Oak Park, Illinois, known for the large collection of homes designed by Frank Lloyd Wright. It is also the birthplace of Ernest Hemingway and contains three homes of writer and Tarzan creator Edgar Rice Burroughs.

The Board concluded that removal of "SACRAMENTO CA" changes the commercial impression of the mark because it no longer refers to Oak Park of Sacramento, California, but may refer to another Oak Park. Or OAK PARK may simply be seen as an arbitrary designation of a park dominated by trees, with no geographical reference.

And so the Board affirmed the rejection of the proposed new drawing.

Geographical Descriptiveness The first prong of the Section 2(e)(2) test requires that the mark (or portion thereof) be a place generally known to the public. The USPTO's evidence showed that Oak Park is located within the Sacramento city limits. The population of Sacramento is about 400,000. Newspaper stories established "[a]t best" that a former mayor of Sacramento, who played in the NBA, grew up in Oak Park of Sacramento.  [Can you name him?]

Considering the evidence as a whole, the Board was not persuaded that "Oak Park" identifies a geographic location generally known to the American purchasing public for beer. Oak Park in Sacramento is minor and obscure. At one time it was an important suburb of Sacramento, but fell into decline. Although Sacramento is not an insignificant city, nothing in the record indicated that the specific area of Oak Park has any significance outside of Sacramento. "At best, the record showed that one professional basketball player grew up there, a fact probably not generally known to the American beer-drinking public."

Because the USPTO failed to satisfy the first prong of the Section 2(e)(2) test, the Board reversed the refusal.

Read comments and post your comment here.

TTABlog comment: Talk about obscure? That's what the words SACRAMENTO CA are in the applied-for mark. I think the USPTO should have allowed the amendment of the drawing and then refused registration under Section 2(e)(3).

Text Copyright John L. Welch 2017.

Wednesday, February 15, 2017

TTAB Denies NEW YORK FAIR AND LOVELY Cancellation Petition - Abandonment not Proven

The Board denied Unilever's petition for cancellation, in whole or in part, of a registration for the mark NEW YORK FAIR AND LOVELY for "Skin soaps, skin cleansers, cosmetics," in International Class 3, and for "Medicated skin creams and medicated skin lotions," in International Class 5. Unilever claimed that respondent had abandoned the mark as to some or all of the identified goods, but Unilever failed to carry its burden of proof. Unilever PLC v. Technopharma Limited, Cancellation No. 92056654 (January 20, 2017) [not precedential].

Grounds for cancellation: Unilever argued that the registration should be cancelled in its entirety because respondent's Section 8 Declaration failed to establish continued use. The Board pointed out, however, that because respondent's registration is more than five years old, Section 1064 limits cancellation to certain enumerated grounds, and filing a faulty Section 8 Declaration is not one of them. Nor is alleged error by the Director's office in the examination of the Section 8 Declaration.

Abandonment: The Board chose to consider Unilever's claim regarding the Section 8 Declaration as a claim of abandonment. Unilever was required to show, by a preponderance of the evidence, that use of the mark "has been discontinued with intent not to resume such use." 15 U.S.C. § 1127.

Reviewing the skimpy record, the Board concluded that Unilever had failed to meet its burden of proof.

Overall, the issue of the actual cessation of use of Respondent’s mark was insufficiently developed at trial to persuade us that an abandonment occurred. The amount of documentation of Respondent’s sales is indeed scant, and Mr. Farah’s testimony is not compelling. However, the burden of demonstrating abandonment is on Petitioner. The evidence of record is consistent with modest ongoing commercial activity under the mark. Even if use of the mark on some or all of the goods was not continuous, there is evidence of record that helps refute any notion of an intention not to resume use ....

Lawful use: Unilever also contended that any use of respondent’s mark did not qualify as "lawful use" because respondent did not comply with federal labeling laws. However, this claim was not mentioned in the petition for cancellation and was "only lightly touched upon at trial." Therefore, the Board agreed with respondent that the issue was not tried by consent, and further that respondent did not have adequate notice of the claim.

In any event, the claim would fail because there had been no final determination of noncompliance by any competent court or agency regarding the sale of respondent's goods. Nor was this a per se violation of applicable law. Unilever failed to adduce the required clear and convincing evidence of a violation.

And so the Board denied the petition for cancellation.

Read comments and post your comment here.

TTABlog comment: A not very interesting soap opera.

Text Copyright John L. Welch 2017.

Tuesday, February 14, 2017

HONEYFILE Merely Descriptive of Security Software, Specimen Unacceptable, Says TTAB

The Board affirmed a Section 2(e)(1) refusal of the mark HONEYFILE, finding it merely descriptive of "computer software platforms for use in the field of computer network security that assist in the tracking of data exfiltration and network intelligence" and for related computer security services. The Board also affirmed the USPTO's rejection of applicant's specimen of use for the software because it constituted mere advertising. In re Bitvoyant, Serial No. 86693221 (February 9, 2017) [not precedential].

Mere Descriptiveness: The evidence established that, in the cybersecurity industry, a "honeyfile" is a "bait file that is intended for hackers to open, and when the file is opened, an alarm is set off." Applicant's specimens confirmed this finding: "We design HONEYFILES to attract adversaries with feasible mock assets." Thus the applied-for mark immediately informs consumers of a "quality, feature, function or characteristic" of applicant's goods and services. Despite applicant's arguments, the Board failed to find any incongruous meaning in the mark when considered in the context of security software and services.

Class 9 specimen of use: Applicant's specimens of use consisted of screenshots of its website, but the Examining Attorney maintained that the specimens were merely advertising materials and did not constitute a "display associated with the goods" because there was no means for ordering the software.

The Board looked to Section 904.03(e) of the TMEP (Jan. 2017), which states that for downloadable software an applicant may submit a specimen showing use of the mark on an Internet website. Such a specimen is acceptable if it "creates an association between the mark and software and provides sufficient information to enable the user to download or purchase the software from the website." *** If the website simply advertises the software without providing a way to download, purchase, or order it, the specimen is unacceptable."

The Board agreed with the examining attorney that applicant's specimens of use were unacceptable.

None of Applicant’s proffered specimens includes a "download" or similar link to put the consumer on notice that the identified goods are indeed available for download or the equivalent thereof. As such, the specimens cannot qualify as a display associated with the goods on this basis.

As noted above, a display of a mark on a screen that appears when computer software is in use is a suitable display associated with the goods. Here, there is no evidence to indicate that that is the nature of the specimens. The specimens merely provide a description of Applicant's products, in the nature of mere advertising. This, however, is not enough.

The Board concluded that applicant's specimens of use failed to show use of the mark in commerce with applicant's class 9 goods.

Read comments and post your comment here.

TTABlog comment: I guess you could say the Board "Pooh-Poohed" applicant's non-descriptiveness argument? Oh, never Milne!

Text Copyright John L. Welch 2017.

Effective Date of New Post-Registration Proof-of-Use Rule Delayed Until March 21st

The USPTO has announced (here) that the effective date of the final rule entitled "Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases," has been re-set to March 21, 2017. Under the new rule, briefly discussed here, the USPTO may require additional information to verify that a mark is in use in commerce in connection with particular goods/services identified in the registration, unless excusable nonuse is claimed.

In accordance with the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled "Regulatory Freeze Pending Review," this action delays the effective date of that final rule 60 days from the date of the January 20, 2017 memo. The effective date of the January 19, 2017 final rule, which would have been February 17, 2017, is now March 21, 2017. The 60-day delay in the effective date is necessary to give agency officials the opportunity for further review of the issues of law and policy raised by the rule.

Read comments and post your comment here.

Text Copyright John L. Welch 2017.

Monday, February 13, 2017

Precedential No. 2: TTAB Affirms Rejection of Specimen of Use for CONEY ISLAND BOARDWALK CUSTARD

The Board affirmed a refusal to register the mark CONEY ISLAND BOARDWALK CUSTARD, in standard character form, for frozen custards [CONEY ISLAND and CUSTARD disclaimed] due to applicant's failure to submit an acceptable specimen of use. Applicant contended that its specimen qualified as a display closely associated with the goods offered for sale in a Boardwalk stand. The Board, however, concluded that consumers would not be likely "to associate the mark with the goods such that the specimen serves as an inducement to the sale of the goods. In re Kohr Brothers, Inc., Serial No. 85430114 (February 9, 2017) [precedential]. 

Section 45 of the Trademark Act states that a mark is deemed to be used in commerce on goods when "(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (B) the goods are sold or transported in commerce." Because Section 45 does not define the term "displays associated therewith," the Board must determine on a case-by-case basis whether a particular specimen qualifies as a "display" adequate to demonstrate use in commerce. The Board observed that "mere advertising" does not suffice. A display must catch the attention of the consumer, who will associate the mark with the goods and be induced to buy them.

Applicant stated that its specimen of use, shown below, is located at eye level on a wall facing the customer as he or she approaches the counter to purchase the goods. It contended that this presentation qualified as a display associated with the goods because (1) the sign includes a picture of the goods and (2) the goods are "in close proximity to the specimen sign as displayed."

The Board, however, noted that most cases concerning a picture of the goods involve a catalog display or a webpage that includes information about the goods to allow a customer to place an order. Here, applicant does not provide information about the goods, portion sizes, flavors, cost, etc. The stylized drawing of a cone, in conjunction with the depiction of a Ferris wheel, is likely to be seen as evoking the Coney Island amusement park in Brooklyn. [Did you know that the Ferris wheel was invented by a man named George Ferris for the 1893 World's Columbian Exhibition in Chicago?] In short, Thus, the depiction of a cone "is more likely to be perceived as part and parcel of a composite word and design mark than as an unmistakable indication of the nature of Applicant’s goods."

Moreover, the mark in the specimen "is not displayed at the point of purchase in such a way that the customer can easily and directly associate the mark with the goods, which are said to be in proximity but not shown to be so." The sign is small - about the size of an envelope - and is located next to a business license and a certificate from the Delaware Health and Social Services Division of Public Health, "hardly a place where a merchant would place material intended 'to catch the attention of purchasers and prospective purchasers as an inducement to make a sale.'" TMEP Section 904.03(g).

In any event, while a consumer might look for a menu posted on a wall facing prospective customers, a consumer would not regard a sign placed together with certificates from the health department and a regulatory agency to be a trademark for the goods. Hence, the sign cannot be considered a display associated with the goods.

Even if, as applicant contended, it was not practical to place the mark on the goods, applicant's sign does not display the mark in such a way as to serve as an inducement to customers to buy the goods. In short, "the specimen is not a display that is easily and directly associated with the goods and cannot serve to support the required showing of use."

And so the Board affirmed the refusal under Section 1 and 45 of the Trademark Act,

Read comments and post your comment here.

TTABlog comment: The same mark is registered (Reg. No. 4939484) by applicant for "retail stores featuring frozen desserts and beverages." Check out the specimens of use in that case.

PS: If applicant's sells its goods from a retail outlet in Delaware, is this mark geographically misdescriptive? geographically deceptively misdescriptive?

Text Copyright John L. Welch 2017.