Friday, June 24, 2011

WYHA? TTAB Affirms Trifusal of NATIONAL QUICK SALE for Real Estate Services

In this long yet enervating decision, the Board affirmed three refusals to register the mark NATIONAL QUICK SALE in standard character form, and two more refusals [a bifusal?] for the same phrase in the design form shown below, for various real estate services, including "mortgage foreclosure mitigation and loan default mitigation services," and "facilitating and arranging for real estate procurement for others." It found the standard character mark to be merely descriptive of the services and likely to cause confusion with two registered marks, and it found the logo mark unregistrable without a disclaimer of the phrase and likely to cause confusion with one of the registered marks. Got that? Would you have appealed? In re National Real Estate Solutions, Inc., Serial Nos. 77722235 and 777222561 (June 17, 2011) [not precedential].

Mere Descriptiveness: Examining Attorney Cory Boone submitted dictionary definitions of "national," "quick," and "sale," and Internet evidence of the use of "quick sale" to refer to a fast sale of real estate. Applicant feebly argued that "quick sale" is subject to an "unlimited number of interpretations," because it does not tell what item is being sold. Of course, that argument is a loser because the mark must be considered in the context of the involved services, not in the abstract. In other words, mere descriptiveness is not a guessing game.

Applicant's assertion that it did not intend to adopt a descriptive mark was obviously irrelevant, since there is no intent requirement for mere descriptiveness under Section 2(e)(1).

The Board concluded that the phrase "NATIONAL QUICK SALE" is merely descriptive of Applicant's services, and so Applicant's standard character mark was refused under Section 2(e)(1), and its design mark was refused for failure to disclaim that phrase.

Likelihood of Confusion: The Board found the standard character mark likely to cause confusion with two registered marks: QUICK$ALE for mortgage banking (on the Supplemental Register), and A QUICK SALE for real estate agency services, financial valuation of real property, and other real estate services.

With regard to the second cited mark, the Board found that the services overlap and would be offered in the same channels of trade to the same classes of consumers. As to the first, the services differ from Applicant's services, but both involve the financing of real estate. The Board found that "persons encountering the services under their respective marks are likely to assume that they originate at the same source or that there is some association between their sources."

Comparing the marks, even though A QUICK SALE is registered on the Supplemental Register and its scope is weak, it is still entitled to protection. The Board found the standard character mark NATIONAL QUICK SALE to be confusingly similar to this mark, but not Applicant's logo mark: [W]e find applicant's design combined with the additional wording NATIONAL sufficiently remarkable and significant to distinguish applicant's mark from registrant's merely descriptive mark on the Supplemental Register."

Turning to the cited QUICK$ALE registration, the Board concluded that the mark would be pronounced as "quick sale," without verbalizing the dollar sign. The appearances of the applied-for marks and this registered mark are similar, as are their meanings and commercial impressions. And so the Board affirmed both Section 2(d) refusals based on this registration.

Text Copyright John L. Welch 2011.


At 3:21 PM, Anonymous Anonymous said...

So it was refused on grounds that it is merely descriptive and that is is likely to cause confusion with another registered mark? Makes me think the other mark, the one registered on the principal register, was probably merely descriptive too. I know that's not grounds for arguing for reversal, but it does say something about the vagaries of the process.


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