Friday, September 30, 2011

TTABlog Quarterly Index: July - September 2011

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Section 2(a) - Immoral or Scandalous:

Section 2(d) - Likelihood of Confusion:

Section 2(e)(1) - mere descriptiveness:

Section 2(e)(2) - Primarily Geographically Descriptive:

Section 2(e)(5) - Functionality:

Section 2(f) - Acquired Distinctiveness:



Dilution:

Failure to Function:

Fraud::

Genericness:

Lack of Bona Fide Intent:

Discovery/Evidence/Procedure:

CAFC Oral Arguments:

Recommended Reading/Listening:

Other:

Text ©John L. Welch 2011.

posted by John L. Welch @ 9/30/2011   0 comments

Finding Apple's 2(f) Evidence Insufficient, TTAB Affirms Mere Descriptiveness Refusal of MULTI-TOUCH for Handheld Devices

The Board affirmed a Section 2(e)(1) mere descriptiveness refusal of the mark MULTI-TOUCH for handheld mobile digital electronic devices [think iPhone - ed.]. Apple's evidence of acquired distinctiveness was insufficient to carry this "highly descriptive" mark over the registration goal line. In re Apple Inc., Serial No. 77219819 (September 23, 2011) [not precedential].


Apple did not dispute that MULTI-TOUCH is descriptive of its goods, but argued that the mark has achieved acquired distinctiveness under Section 2(f).

Examining Attorney April K. Roach contended that MULTI-TOUCH identifies a type of touchscreen that "allows a user to manipulate and control the functions of an electronic device by using more than one finger simultaneously." Various webpages and articles showed that multi-touch "not only identifies the technology, but also describes how a user of the goods operated the device." The Board therefore agreed that MULTI-TOUCH is highly descriptive of a feature of the identified goods.

The Board observed that "more evidence is required where a mark is so highly descriptive that purchasers seeing the matter in relation to the named goods or services would be unlikely to believe that it indicates source in any entity."

Apple had used the MULTI-TOUCH mark for only two and one-half years. Its evidence consisted mostly of webpages and articles describing the iPhone.

This evidence established that iPhone is a very successful product that has generated much interest among potential purchasers. However, as the examining attorney correctly pointed out, the applied-for mark is not IPHONE, it is MULTI-TOUCH.

None of the articles submitted by Apple used "multi-touch" in a trademark manner. The mark is not used on the goods, or on packaging for the goods. The Board was therefore "not sympathetic" to the argument that the success of the iPhone translates to acquired distinctiveness for the term MULTI-TOUCH.

The Board noted that MULTI-TOUCH mark appears at Apple's website on pages describing the operation of the device. There was no evidence as to how long the term was used on the website, or the number of visitors there. There were no user manuals of record, little advertising, no evidence of in-store demonstrations, and no evidence regarding national tv commercials mentioning MULTI-TOUCH. There were no affidavits, declarations, depositions, or other evidence showing the nature and extent of Apple's use of the mark, and no evidence of advertising expenditures in connection with the mark. "Simply put, the record contains little direct or circumstantial evidence that purchasers of applicant's goods view MULTI-TOUCH as a distinctive source indicator."

In light of the highly descriptive nature of MULTI-TOUCH, the Board "would need substantially more evidence (especially in the form of direct evidence from customers)" to find acquired distinctiveness.

And so the Board affirmed the Section 2(e)(1) refusal to register.

TTABlog comment: Will Apple take a second bite of the apple? If it seeks review of the Board's decision under 15 USC 1071(b), it can submitted additional evidence. Will Apple try to bolster the feeble record regarding acquired distinctiveness?

I note that Amazon's new Kindle Fire features a "Multi-Touch Display." Will Apple stand for that?

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/30/2011   0 comments

Thursday, September 29, 2011

Precedential No. 25: TTAB Finds Raised Middle Finger Design for Bottle to be Scandalous or Immoral, Affirms 2(a) Refusal

The Board affirmed a Section 2(a) refusal to register the bottle design shown below, for various beverages, on the ground that the mark "would be regarded as vulgar by a substantial composite of the general public, and therefore the mark is scandalous or immoral." Applicant argued that, under contemporary attitudes, the "giving the finger" gesture is not scandalous or immoral if not directed at a particular individual or group. The Board was not persuaded. In re Luxuria, s.r.o., 100 USPQ2d 1146 (TTAB 2011) [precedential].


Before reaching the substantive issue, the Board pointed its collective finger at Applicant and its actions on this appeal. Applicant twice sought to have the case remanded to the Examining Attorney in order to submit certain additional evidence, but the Board refused to remand because the requests came late in the appeal (after briefs were filed) and because Applicant did not explain why it could not have found this evidence earlier.

Nonetheless, Applicant proceeded to attach that same evidence to its reply brief. The Board "was at a loss to understand why applicant would submit material in this manner, when the Board had previously denied its requests for remand," and it refused to accept the evidence and the reply brief (which discussed the attached material at length). The Board pointedly pointed out:

We cannot help but note the convergence between applicant’s actions toward the Board and the message conveyed by its mark.

Turning to the Section 2(a) issue, Applicant acknowledged that its design configuration represents what is commonly referred to as "giving the finger" or "giving the bird." [Some prefer "flipping the bird," I believe - ed.]. Examining Attorney Charisma Hampton submitted dictionary/reference material listings and Internet articles, and the Board took judicial notice of several dictionary definitions.

The foregoing evidence demonstrates that the gesture depicted in applicant’s mark is vulgar; in fact, the definitions quoted above characterize the gesture as "obscene."

Although dictionary definitions are alone enough to establish that a mark is scandalous to a substantial composite of the general public, here the evidence also included other definitions and articles.

Moreover, the identified goods are general consumer products that could appear in grocery stores and be viewed by parents shopping with their children. "[E]ven if some individuals might personally find bottles 'giving the finger' funny, many, if not all, of these individuals would not find it funny to expose their children to such a configuration."

As to Applicant's arguments, the Board probed record evidence and found it "sufficiently contemporaneous with the examination of the subject application that [it] reflect[s] contemporary viewpoints." Moreover, the limited evidence that some people view the gesture as funny was not sufficient to show that it is acceptable to the general public.

The Board rejected Applicant's attempt to distinguish this mark from a gesture aimed at a particular individual.

Not to put too fine a point on it, the gesture depicted by applicant’s mark is the visual equivalent of an extremely offensive expletive." Just as these words would be considered scandalous and immoral if used as a trademark, even if it was not clear to whom the insult was directed, the visual depiction of these words by the finger gesture shown in applicant’s mark is equally scandalous and immoral.

Finally, Applicant offered up a third-party application for the mark shown below, which application had been passed to publication without a Section 2(a) refusal. The Board noted, however, that an application is probative of nothing (other than the fact that it has been filed), and furthermore that application was withdrawn after it was opposed.


And so the Board ruled that the PTO had met its burden to show that the applied-for mark "comprises matter that would be regarded as vulgar by a substantial composite of the general public," and therefore it deemed the mark "scandalous or immoral" under Section 2(a).

TTABlog questions: Suppose this mark were used for proctological services? Then would it be scandalous? Merely descriptive? Does this case fall in the "WYHA?" category?

Text Copyright John L. Welch.

posted by John L. Welch @ 9/29/2011   3 comments

Wednesday, September 28, 2011

TTAB Affirms Mere Descriptiveness Refusal of "A BRAND NAME LAW FIRM," Finding Double Entendre Argument Unappealing

The Board affirmed two Section 2(e)(1) refusals, finding the mark A BRAND NAME LAW FIRM to be merely descriptive of "legal services," and A BRAND NAME ADVISOR merely descriptive of "business consultation services, namely, product and marketing evaluation; advertising services, namely, creating corporate and product identity for others; creating trademarks for others." Do you get the double entendre? In re Collen IP Intellectual Property Law, P.C., Serial Nos. 77513717 and 77513748 (September 18, 2011) [not precedential]. [Affirmed by the CAFC per curiam under Fed. Cir. R. 36, October 9, 2012]


Examining Attorney Zachary R. Bellow contended that "brand name" is a "feature, characteristic, function or purpose of applicant's legal services," that "law firm" merely describes the services, and that the combination is merely descriptive.

There was no real dispute that the meaning of the mark A BRAND NAME LAW FIRM is descriptive. However, Applicant contended that the mark is a double entendre because BRAND NAME has another prominent meaning: it means widely familiar, well-known notable, famous, a household name, "the standard in the industry."

The Board noted that if a mark is a double entendre, i.e., if it has two meanings, the mark is not merely descriptive under Section 2(e)(1). Examples: SUGAR & SPICE for bakery products; NO BONES ABOUT IT for boneless ham; KICK ASS for donkey spurs. [I made up that third one -ed.]

The Board, however, found no such double entendre in A BRAND NAME LAW FIRM. In the cases where the Board has found a double entendre, the second meaning is not descriptive. Here, A BRAND NAME LAW FIRM does not have a non-descriptive meaning.

A BRAND NAME LAW FIRM, when used in connection with legal services, has not only the meaning of a law firm that specializes in brand name or trademark law, but a law firm that is known or has a good reputation. *** Thus, although applicant’s mark has a second meaning, it is a laudatory descriptive one, and whichever meaning that one would ascribe to the mark, it is merely descriptive of the identified legal services.

The Board noted that regardless of whether the Examining Attorney had contended that the second meaning for the mark is "laudatorily descriptive," the Board can still make such a finding because it "may rely on a different rationale from that argued by the examining attorney" in considering the Section 2(e)(1) ground for refusal.

As to the second mark, the evidence was the same as with the first mark. Again there was no real dispute that A BRAND NAME ADVISOR describes the services. The Examining Attorney (apparently) argued that this mark does not have a second meaning that consumers will recognize. The Board, however, found that if consumers do recognize a second meaning, that meaning again is merely descriptive for the same reasons as stated above.

And so the Board affirmed the refusals.

TTABlog comment: Hmmm. How does A BRAND NAME BLOG sound?

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/28/2011   2 comments

Tuesday, September 27, 2011

TTAB Affirms Genericness Refusal of FIREPOT for ... Guess What?

Applicant Bird Brain had the idea that it could register the term FIREPOT for "decorative tabletop torches," but Examining Attorney Cheryl Clayton issued a refusal to register on the ground of genericness. Bird Brain's appeal went up in smoke when the Board affirmed the refusal, finding via its In re Gould analysis that "the individual components of applicant’s mark are generic for the goods, specifically pots that hold fire, and their combination lends 'no additional meaning to the term.'" In re Bird Brain, Inc., Serial No. 77817178 (September 7, 2011) [not precedential].


The Board, as usual, found the genus of the goods to be "adequately defined by applicant's identification of goods." The Examining Attorney relied on website evidence and on dictionary definitions of "firepot," including one from Wikipedia, in contending that applicant's decorative torches "are simply one style of fire pot of the entire genus of fire pots."

Applicant Bird Brain argued that the vast majority of website pages refer to its products, that its goods are not used for cooking (unlike those of the dictionary definitions), and that the Wikipedia entries are "unverified, unprofessional," and "highly susceptible to challenge from professional sources."

The Board, however, observed that Wikipedia evidence is admissible as long as the non-offering party has an opportunity to rebut it; here, Bird Brain offered no rebutting evidence. [Wikipedia evidence must also be corroborated: see TTABlog posting here].

The Board took judicial notice of dictionary definitions of "fire" and "pot," concluding that FIREPOT is generic for "a pot that holds fire." The website evidence showed use of the term FIREPOT for a "broader array of pot-like vessels that contain fire for decorative and functional purposes."

The fact that applicant’s firepot is a subset of goods that are referred to as firepots does not transform it into a term capable of source-identifying significance for applicant’s firepots.

The record established that "the individual components of applicants mark [It's not a mark - ed.] are generic for the goods, specifically pots that hold fire, and their combination lends no additional meaning to the term." The definitions and website excerpts supported that conclusion.

As to the evidence showing use of FIREPOT in connectionvwith BIRD BRAIN's goods, the Board pointed out that "no amount of evidence can transform a generic term into a registrable trademark." [That kind of begs the question, doesn't it? - ed.]

TTABlog comment: After you watch the Bird Brain video below, do you have any doubt about the term's genericness?


Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/27/2011   2 comments

Monday, September 26, 2011

Fame Propels AUTOZONE to TTAB 2(d) Victory in DENT ZONE Cancellation

Registrant Dent Zone was badly banged up in its collision with AutoZone in this Section 2(d) cancellation proceeding. The Board found the mark DENT ZONE, in standard character and design form, for vehicle maintenance and repair, likely to cause confusion with the registered mark AUTOZONE for retail auto parts store services and auto repair services. The fame of the AUTOZONE mark dominated the du Pont analysis, outweighing the limited proofs of third-party use and the lack of actual confusion evidence. AutoZone Parts, Inc. v. Dent Zone Companies, Inc., 100 USPQ2d 1356 (TTAB 2011) [not precedential].


Fame: AutoZone's sales revenues in 2008 were $6.5 billion. It spent more than $750 million in advertising since 1985, operates more than 4000 retail stores, and reaches ninety percent of the population more than 40 times per year with its radio and television advertising . Although AutoZone did not place these numbers in context, i.e., in comparison with other retail auto parts store services, and although it did not provide direct evidence of consumer recognition of its mark, the Board found the evidence sufficient to establish fame for Section 2(d) purposes.

The marks: The Board, not surprisingly, found that DENT ZONE is the dominant portion of Dent Zone's registered design mark. Moreover, the words "auto" and "dent" are descriptive in the respective marks. Both AUTOZONE and DENT ZONE suggest "a place or zone for automobile-related services." The differences in appearance and sound are outweighed by the "other similarities in the marks." When compared in their entireties, "and particularly in view of the fame of the AUTOZONE mark," they are more similar than dissimilar.


The services: The Board found the services to be "sufficiently related" for purposes of the duPont analysis. The evidence showed that AutoZone sells and rents tools, and sells parts, for auto repair, and at its stores it offers testing, repair, diagnosis, and installation of parts. Moreover, Petitioner submitted 23 use-based registrations covering both auto repair and auto parts services.

Since there are no restrictions in the involved registrations, the Board presumed that the involved services are purchased by the same consumers, i.e., automobile owners. To the extent that the customers are "sophisticated," the Board observed that even careful purchasers are likely to be confused when similar marks are used for similar services.

Third-party use: The evidence of third-party use of "zone" marks was of little or no probative value because it was not accompanied by proof of the extent or nature of the use. [Then why give probative value to Petitioner's third-party registrations absent such proof? -ed].

Lack of actual confusion: Dent Zone pointed to the lack of actual confusion evidence despite the concurrent use of the marks since the mid-1990s. The Board, however, pooh-poohed this lack of evidence, since actual confusion evidence is not required under Section 2(d), since that evidence is often "difficult to adduce," and since the lack of such evidence is here outweighed by the other factors.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/26/2011   4 comments

Friday, September 23, 2011

Test Your TTAB Judge-Ability: Are PARK LANE and PARK AVENUE Confusingly Similar for Footwear?

Put on your black robe and your thinking cap, dear reader, and take a stab at this appeal from a Section 2(d) refusal. Applicant sought to register the mark PARK LANE for various clothing items, including footwear. The PTO refused registration, finding the mark likely to cause confusion with the mark PARK AVENUE, registered in the form shown immediately below, for "women's hosiery and footwear." So the goods overlap. But are the marks too close? How would you rule? In re Park Lane Shoes Limited, Serial No. 79073835 (September 6, 2011) [not precedential].


Applicant (a UK Company) contended that Park Avenue is one of the most famous streets in the world, conjuring up, in the minds of consumers, images of "a fashionable, glamorous and sophisticated lifestyle in New York City," while PARK LANE refers to a well-know street in London, synonymous with wealth and the aristocratic English lifestyle.

The Examining Attorney argued that AVENUE and LANE have similar meanings, and that the marks therefore have similar connotations and overall commercial impressions.

Since the goods overlap, the Board must presume that the parties' respective footwear travel in the same trade channels to the same classes of consumers, including ordinary consumers who would exercise nothing more than ordinary in their purchases. Moreover, a lesser degree of similarity is needed to support a likelihood of confusion finding when the goods are identical.

Here, according to the Board, the marks are "somewhat similar in sound and appearance," but they have different meanings and commercial impressions when considered in their entireties.

Citing other cases in which similar marks used for the "same" goods were nonetheless found to be not confusingly similar [CROSSOVER, PLAYERS, BOTTOMS UP, CRISTAL, VARGAS GIRL], the Board found that PARK LANE and PARK AVENUE “are different in meaning and engender different commercial impressions."

PARK AVENUE suggests a lifestyle for an address in New York City. *** PARK LANE suggests sophistication associated with a fashionable address in London. Accordingly, we find that the marks PARK AVENUE and PARK LANE are different in meaning, and engender different overall commercial impressions.

The Board ruled that "[t]hese differences outweigh any similarities in sound and appearance.”

In finding that the marks have different meanings and overall commercial impressions, we realize that consumers in this country may be more familiar with Park Avenue than they are with Park Lane. But, their familiarity with Park Avenue, in itself, is likely to sufficiently distinguish the marks in terms of meaning and commercial impression.

And so the Board reversed the refusal.

TTABlog comment: Well how did you do? Did this one catch you by surprise? In the TOTAL case, blogged yesterday, the Board observed that the Board "must base [its] decision on the least sophisticated potential purchasers." Do you think the least sophisticated purchaser of footwear would know where Park Lane is? Or Park Avenue for that matter? Or recognize the difference?

In that last quoted paragraph, is the Board misapplying the fame of the PARK AVENUE mark? In other words, it says that because PARK AVENUE is famous, there is less likelihood that it will be confused with other similar marks.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/23/2011   7 comments

Thursday, September 22, 2011

Precedential No. 24: Fame of TOTAL Mark Yields Near Total Victory in General Mills 2(d) Opposition to Fage Yogurt Applications

Putting an end to this 11-year old food fight (described by the Board as "acrimonious" and "torturous"), the Board sustained General Mills' opposition to 14 and one-half of Fage's 15 applications to register various design marks that contain the word TOTAL, for yogurt and a few other products. The Board found Fage's marks likely to cause confusion with GM's famous mark TOTAL, registered in standard character form for ready-to-eat breakfast cereal. General Mills, Inc. and General Mills IP Holdings II, LLC v. Fage Dairy Processing Industry S.A., 100 USPQ2d 1584 (TTAB 2011) [precedential]. [The parties ultimately settled this dispute, and the Board dismissed these proceedings as part of the settlement: see this Order].


After plowing through the 583 papers filed in this proceeding, including the trial record of more than 20,000 pages, the Board noted that "[e]xtremely rare is the Board proceeding that generates a record of the size in this case." It pointed out that its jurisdiction is of a "very limited nature:"

The Board is an administrative tribunal of the USPTO empowered to determine the right to registration only. The Board has no authority to determine the right to use, or the broader questions of infringement, unfair competition, damages or injunctive relief. ***

To reiterate our frustrations expressed to the parties at the oral hearing, the issues herein do not warrant a record of this size. This is not the first time the Board has expressed its displeasure about overzealous litigation in our proceedings.

Fame: Turning to the substantive issues, the Board first considered GM’s claim that its mark is famous. GM proved that its sales of, and advertising expenditures for, TOTAL brand cereal (since 1986) were "substantial," its market share "impressive," and its household penetration "very high." The brand is regularly mentioned in the media, and brand awareness is "consistently very high." The Board therefore concluded that, for Section 2(d) purposes, TOTAL is a famous mark for ready-to-eat cereal, even though it is conceptually a suggestive mark, and it is entitled to a broad scope of protection.


The goods: The Board agreed with Fage that there is no per se rule that all breakfast foods are related, but GM established that there is a "close relationship between opposers' ready-to-eat cereal and applicant's yogurt given consumers longstanding mixing of these types of products and the circumstances surrounding their marketing."

The purchasers: The involved goods are common food items sold in the same stores, and so the purchasers and channels of trade overlap. Moreover, Opposers promote cereal in the dairy aisle, and vice versa. The overlap of consumers is particularly strong with regard to health-conscious consumers. [As opposed to health-unconscious? -ed.]

These inexpensive grocery items are generally purchased on impulse, and although some of the consumers of the involved goods may be more careful in their purchases, the Board "must base [its] decision on the least sophisticated potential purchasers." [A scary thought! - ed.]

The marks: The Board divided Fage's marks into two sets. In the first seven marks "the word TOTAL is clearly the most prominent and memorable component of the mark." Consumers will focus on the word TOTAL as the source-identifying component of each mark.

In the second set, comprising eight marks, the word TOTAL is depicted in smaller font in the middle of the marks, and the word FAGE appears in larger typeface and is emphasized. However, even if FAGE is perceived as a house mark and the word TOTAL as merely a product mark, "this would not dispel likely confusion as to sponsorship or affiliation."

Even though the word TOTAL is suggestive, here GM's mark is famous, and the Board did not find TOTAL to be "so highly suggestive that the use of applicant's house mark FAGE (along with other descriptive and non-distinctive matter) is sufficient to eliminate likely confusion with a famous mark, when used on related goods ...."

Lack of Actual Confusion: The Board found the lack of actual confusion to be a neutral factor. Of course, such evidence is notoriously difficult to find. Moreover, the record evidence did not clearly establish that there was a significant opportunity for confusion to occur, since Fage's marketplace footprint only gradually reached the general consumer market. The Board refused to make an adverse inference on this issue based on GM's failure to conduct a likelihood of confusion survey.

And so, balancing the relevant du Pont factors, the Board ruled that confusion is likely with regard to Fage's marks when used for yogurt. In light of this Section 2(d) ruling, the Board declined to reach GM's dilution claim.

The Board dismissed the opposition, in part, to one of Fage's applications, which application included both yogurt in class 29, and "sauces, spices and food flavorings, not of essential oils" in class 30. GM offered no evidence or argument regarding those class 30 goods, and so that half of the opposition was dismissed and that one application will proceed to registration for the class 30 goods.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/22/2011   3 comments

Wednesday, September 21, 2011

WYHA? TTAB Affirms Genericness Refusal of DIGITAL RF for Communication Devices

The Board affirmed this genericness refusal to register, on the Supplemental Register, the designation DIGITAL RF for various communication devices, finding that "digital RF" is broadly used to identify radio transmitting and receiving equipment that can convert digital signals to analog and vice versa. Examining Attorney Lief Martin submitted dictionary definitions, excerpts from U.S. patents, magazine articles, and web pages to establish a prima facie case that Applicant was unable to overcome. In light of the PTO's evidence, would you have appealed? In re Hypres, Inc., Serial No. 77455602 (August 31, 2011) [not precedential].


The Board noted that one of the web pages cited by the Examining Attorney came from a German source, but under In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002), material from foreign websites on technical or scientific topics may be relevant. [For further explanation, see this article].

Applicant contended that DIGITAL RF is not generic because "[t]here is ... a significant incongruity between 'digital', signifying something that can be expressed discretely in amplitude and time and can be processed and abstracted according to established rules (programs), on one hand, and 'RF', implying something clearly not discrete or independent on [of?] its environment, often defying attempts to mask its complexity."

The Board found the genus of goods at issue to be "communications equipment for sending
and/or receiving radio frequencies and converting them to digital form." And the evidence established that, to the relevant public:

"digital RF" is an abbreviation for "digital radio frequency," and ... certain radio apparatus have as a feature the ability to convert radio waves into digital signals. Digital RF apparatus can convert digital signals to analog (and vice versa) for transmission over radio frequencies. *** These references reflect that “digital RF” is broadly used to identify radio transmitting and receiving equipment which can convert digital signals to analog and vice versa.

Applicant did not offer any evidence in response, but merely disputed the relevance and probity of the examining attorney’s evidence. The Board was not only not persuaded by Applicant's arguments, but noted that it would have come to the same conclusion based on the evidence that Applicant did not dispute.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/21/2011   0 comments

Tuesday, September 20, 2011

Test Your TTAB Judge-Ability: Are ENCHANTED PRINCESS and DISENCHANTED PRINCESS Confusingly Similar For Stuffed Toys?

Applicant California Costume appealed from a Section 2(d) refusal to register the mark ENCHANTED PRINCESS for, inter alia, positionable toy figures and soft sculpture toys. The PTO found the mark confusingly similar to the registered mark DISENCHANTED PRINCESS for "toys, namely, stuffed dolls, stuffed toys, and plush toys." The goods are certainly very close, but what about the marks? In re California Costume Collections, Inc., Serial No. 77838682 (September 1, 2011) [not precedential].


Applicant contended that the marks are distinguishable because its mark "conjures up expected images of fairies, fairytales, princes, castles, knights in shining armor, positive hopes and dreams," whereas the cited mark conveys "disillusionment, the idea of being an outcast and of being a non-conformer or nihilist."

Examining Attorney David Yontef urged that the terms "enchanted" and "disenchanted" have "related, albeit different meanings."

Applicant did not "seriously dispute" that there is a close relationship between the goods. In any event, the Examining Attorney submitted numerous use-based third-party registrations for marks covering both types of goods.

Because they goods are closely related, the Board presumed that the travel in the same (normal?) channels of trade to the same classes of purchasers.

As to the marks, the Board found them to be similar in sound and appearance. Applicant attempted to limit the meaning of its mark by reference to registrant's website which purportedly attempts to "exploit the commercial impression of the Angry Little Girls cartoon characters (here). However, the website was not of record, and furthermore the identification of goods in the registration has no reference to the cartoon characters.

Citing the MR. CLEAN/MR. STAIN and the UPTOWNER/DOWNTOWNER cases, the Board found that the marks create similar commercial impressions:

Even though the words 'enchanted' and 'disenchanted' have opposite meanings, the marks as a whole, when used on closely related toys, evoke similar commercial impressions. The words are associative, and both marks engender similar overall commercial impressions, namely of princess-like toys marketed under a shared theme of fairytale magic and spells; the 'enchanted princess' is under a spell, and the 'disenchanted princess' is free from the spell.

The Board found that the similarities in sound, appearance, and commercial impression outweigh any dissimilarity in meaning, and it concluded that consumers "would likely believe, upon encountering applicant's mark ENCHANTED PRINCESS for toys, that the goods originated from or are associated with or sponsored by the same entity."

TTABlog comment: There was no dis-sent.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/20/2011   2 comments

Monday, September 19, 2011

Finding Prior Trade Identity Rights in PLATEFRAME, TTAB Cancels PRETTYPLATEFRAMES Registration for License Plate Frames

Although Petitioner MacNeil Automotive's mark PLATEFRAME for license plate frames is a weak mark, the Board granted this petition to cancel the mark "PRETTYPLATEFRAMES" for the same goods, on the ground of likelihood of confusion. Petitioner proved that it had acquired "trade identity rights" in its mark prior to Respondent Harris's priority date (her application filing date), and so priority was established. MacNeil Automotive Products, Limited v. Theresa Harris, Cancellation No. 92051000 (September 2, 2011) [not precedential].


Priority: Registrant Harris, appearing pro se, did not introduce any evidence. The Board applied the Otto Roth doctrine in observing that Petitioner "cannot prevail unless its designation is, or has become, distinctive of its goods prior to the earliest date that respondent can rely upon, namely, the application filing date for her involved registration."

The Court of Appeals for the Federal Circuit has taken the position that "[u]nder the reasoning of Otto Roth, the proper focus of section 2(d) is not on 'mark' or 'trade name' but on whether there is a likelihood of confusion as a result of trade identity rights that the opposer/petitioner has acquired." Towers v. Advent, 16 USPQ2d at 1042.

Considering the definitions of the words "plate" and "frame" in the context of Petitioner's goods, the Board deemed PLATEFRAME to be "at the very best... highly descriptive." As to the genericness of the term PLATEFRAME, the Board noted that "[g]iven the posture of this case, the issue of the capability of this combined term has not yet been fully pursued under the two step test." [Emphasis added. Is the Board suggesting that this issue should be taken up by the PTO when Petitioner's currently-suspended application is examined?].

The question, then, was "whether petitioner has acquired sufficient trade identity rights to establish priority herein." The Board answered in the affirmative:

Based upon [the] evidence showing ad copy prominently displaying the PLATEFRAME mark and goods, and specifically the extensive magazine advertisements between October 2003 and November 2005, we find that petitioner’s mark had acquired sufficient trade identity rights prior to the application filing date for respondent’s involved registration, and hence, petitioner has shown its priority.

Likelihood of confusion: The Board batted back Petitioner's claim that PLATEFRAME is a famous mark for Section 2(d) purposes:

[W]hile we find that petitioner’s cumulative evidence of the tens, if not hundreds, of millions of impressions of the alleged mark may be satisfactory to establish a sufficient level of distinctiveness for purposes of establishing priority of a distinctive source indicator, we find that this record does not establish that, by virtue of petitioner’s use and advertising of its PLATEFRAME mark for its license plates frames, petitioner’s claimed mark has become a strong mark.

Therefore, the Board deemed PLATEFRAME to be "an inherently weak mark that is not entitled to a broad scope of protection."


The Board found the marks to be "highly similar" in overall commercial impression. However, even week marks are entitled to protection vis-a-vis a confusingly similar mark used on identical goods.

And so the Board granted the petition for cancellation.

TTABlog comment: In footnote 19, the Board pointed out that a different conclusion on the issue of distinctiveness might be reached on a different record created during an ex parte examination under Section 2(f). In other words, the pro se Respondent here submitted no evidence regarding genericness or descriptiveness, whereas a properly developed record might result in a finding that the term PLATEFRAME is not registrable.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/19/2011   4 comments

Sunday, September 18, 2011

TTABlog Job Posting: TTAB Seeks Senior Level Attorney Advisor

The TTAB is seeking to fill the position of Senior Level Attorney Advisor (here). "The incumbent is an attorney who is a recognized expert in: trademark law and regulations; TTAB policies and procedures related to all aspects of appeals, oppositions, cancellations and concurrent use proceedings; guidelines for practice before the TTAB; providing staff assistance in policy formulation and translation of policy decisions into revised guidelines in TTAB matters; and drafting and updating training materials for all professionals and technical support staff at the TTAB."


Major Duties:

Some of the major duties of the Senior Level Attorney Advisor (Trademarks) are as follows:

Serve as the Editor of the Trademark Trial and Appeal Board Manual of Procedure (TBMP), which is the principal guide for TTAB and Trademark Examining Operations personnel and the public on practices and procedures of the Board.

Review TTAB decisions prior to publication and make recommendations to the USPTO Director or the Director's designee, and the Chief Administrative Trademark Judge (Chief ATJ) of the TTAB as to decisions that should be issued as precedents of the Board.

Develop and formulate new TTAB practices and procedures, and ensure dissemenation of the same to USPTO personnel via official notices, training materials and revisions in the TBMP.

Serve as the TTAB policy, practice and procedure expert and consultant to the Chief ATJ and other USPTO officials, conducting research on trademark issues that may become or are involved in TTAB proceedings and identify when there is a need for a statement of new or improved TTAB practice or procedure.

Represent the Chief Administrative Trademark Judge in dealings with attorneys, industry representatives, and trademark law associations in matters or complaints involving TTAB practices and procedures.

Represent TTAB in meetings with bar associations, trade associations, and other national and international trademark law groups on matters relating to recent developments in TTAB rules, regulations and practice.

posted by John L. Welch @ 9/18/2011   0 comments

Friday, September 16, 2011

Reversing a 2(e)(2) Geographical Descriptiveness Refusal, TTAB Asks, Where The Heck Is WINDHOEK?

The PTO refused registration of the marks WINDHOEK LAGER and WINDHOEK LIGHT [LAGER and LIGHT disclaimed], finding them to be primarily geographically descriptive of "beers" under Section 2(e)(2). The Board reversed the refusals because the PTO failed to establish that "the primary significance of applicant's marks is that of a generally known geographic place." Or to put it another way, where the heck is Windhoek? In re Namibia Breweries Limited, Serial Nos. 77761812 and 77761817 (September 12, 2011) [not precedential].


Well, Windhoek is the capital of the of the Republic of Namibia, in southern Africa. There was no dispute that Windhoek is a geographical place. Applicant is located in Windhoek and its beers originate there. The key question under Section 2(e)(2) was whether the primary significance of the marks WINDHOEK LAGER and WINDHOEK LIGHT is that of a name of a place that is generally known to the relevant purchasing public

To support a finding under Section 2(e)(2) that the primary significance of a mark consisting of or including a place name is its geographical significance, it must be shown that the place named in the mark is a place that is or would be generally known to the relevant purchasers, and not a place that is remote or obscure.

Applicant argued that Windhoek, Namibia "is so remote and obscure that the primary significance of the word WINDHOEK to those purchasers would not be that of the name of a geographical place."

The Board first found that the relevant purchasing public for "beers" is the average American beer purchaser. [What image comes to your mind? - ed.]. The generic terms LAGER and LIGHT have no significance in the 2(e)(2) analysis.

The Examining Attorney's evidence showed that Windhoek is the capital of Namibia and has a population of some 233,000. It is a tourist center for southern Africa, and various websites refer to Windhoek.

The Board, however, found that the PTO's evidence fell short of "establishing that the primary significance of WINDHOEK to average American beer purchasers would be its geographical significance."

The evidence does not establish that these purchasers have had any significant exposure to the designation WINDHOEK, and thus any basis for readily recognizing its geographical significance, when they encounter applicant’s marks.

There was no evidence that Windhoek is commonly mentioned in U.S. media, and the websites cited by the PTO are aimed at African readers. Nor was there evidence that Windhoek is a common or likely tourist destination for Americans, or statistics as to how many Americans visit Windhoek, or evidence of promotion of Windhoek as a tourist destination in this country. There was no evidence of American trade or scientific or cultural exchanges with Windhoek or Namibia.

And so the Board concluded that, on this record, Windhoek, Namibia "is a relatively obscure and remote place which would not be generally known to average American beer purchasers."

We find it to be unlikely that average American beer purchasers would have been exposed to the geographical significance of the designation WINDHOEK to such an extent that, when they encounter applicant’s marks, they will readily recognize WINDHOEK to be a place name, rather than view it as an arbitrary designation being used as a trademark for the goods.

The Board therefore concluded that the first prong of Section 2(e)(2) was not satisfied, and so it reversed the refusal.

TTABlog comment: I like to think of myself as an above-average American beer purchaser, and I've never heard of Windhoek. I does sound like a geographical place, maybe in Australia or New Zealand. Suppose the average consumer thinks that Windhoek is a place, but doesn't know where it is. Would that be enough to satisfy the first prong of Section 2(e)(2)? I doubt it.

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/16/2011   7 comments

Thursday, September 15, 2011

Precedential No. 23: Sophistication of Buyers Leads to TTAB Dismissal of CALYPSO Section 2(d) Opposition and Cancellation Proceeding

The Board dismissed this combined opposition and cancellation proceeding, finding Defendant's six marks, all containing the word CALYPSO with the remaining words disclaimed, for equity investment management and fund services, not likely to cause confusion with the registered mark CALYPSO for "computer software for use by financial institutions for core processing and control." The Board concluded that the differences in the goods/services and the sophistication of the customers "strongly outweigh" the other relevant du Pont factors, including the similarity of the marks and the strength of Plaintiff's mark. Calypso Technology, Inc. v. Calypso Capital Management, LP, 100 USPQ2d 1213 (TTAB 2011) [precedential].


More than half of the 33-page opinion concerned various evidentiary rulings, none of which were noteworthy. The last 13 pages are devoted to the likelihood of confusion analysis.

The Marks: Defendant sought to register the marks CALYPSO CAPITAL MANAGEMENT, CALYPSO QUALIFIED PARTNERS, and CALYPSO MASTER FUND. Its registered marks are CALYPSO OVERSEAS, CALYPSO PARTNERS, and CALYPSO ADVISORS. With all the other words disclaimed, the Board not surprisingly found the word CALYPSO to be the portion having source-identifying significance in Defendant's marks. Therefore the Board found the marks to be "similar" to Plaintiff's mark.

The Goods/Services: As to the respective goods and services, the fact that both are in the "financial field" does not mean that they are necessarily related for 2(d) purposes. Plaintiff pointed to third-party registrations that include financial services and software, but none were based on use in commerce. There was simply no evidence that the involved goods and services "are ever offered by a single company." In short, Plaintiff failed to show "the necessary connection that would cause consumers of these goods and services to believe that they emanate from a single source."

There was evidence that the same institutions that purchase computer software like that of Plaintiff would also purchase investment services offered by Defendant. But there was no evidence that the purchasing decisions would be made by the same people. Therefore, this factor favored Defendant.

Purchaser Sophistication: The only overlap in customers for the involved goods and services consists of financial institutions. "We are not dealing here with an individual with a few dollars to invest." The entities using Defendant's services "will be investing large sums of money, and will be extremely careful and sophisticated purchasers." Similarly, "because of the cost and the purpose " of Plaintiff's software, the purchasers will also be careful and sophisticated.

These sophisticated consumers are not likely to assume that "the disparate goods and services" emanate from the same source merely because they are offered under marks comprising or containing the word CALYPSO. The purchasers "would be aware of the practices of the industry, and recognize that such goods and services do not emanate from a single source."

Strength of Plaintiff's Mark: Plaintiff failed to prove that its mark is famous, but the Board found that the mark is arbitrary and strong.

Balancing the relevant duPont factors, the Board ruled that Plaintiff had failed to prove likelihood of confusion, and so it dismissed the combined proceedings.

TTABlog comment: Why was this decision deemed precedential?

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/15/2011   1 comments

Wednesday, September 14, 2011

Precedential No. 22: TTAB Renders Split Decision in CURE4KIDS 2(d) Oppositions

In this less than scintillating, yet precedential decision, the Board sustained two Section 2(d) oppositions and dismissed three more, all alleging likelihood of confusion with the mark CURE4KIDS, registered in standard character and design form, for "charitable fund raising in the field of children's healthcare" and "providing medical information." Applicant sought to register the marks CURE KIDS, CURE KIDS USA, and the three design marks shown below, all containing the words "Cure Kids," for fundraising services and medical research [with various words disclaimed]. This summary will touch on the highlights of the decision, such as they are. American Lebanese Syrian Associated Charities, Inc. v. Child Health Research Institute, 101 USPQ2d 1022 (TTAB 2011) [precedential].




At page 11 of the opinion, the Board provided a handy chart comparing the services of the parties. It found the respective services to be either legally identical or related, and the channels of trade and classes of consumers to be the same or overlapping.

As to the inherent strength of Opposer's marks, third-party registrations "corroborate the common sense conclusion that the term 'Cure4Kids'" is highly suggestive, if not descriptive of the services "because it describes the purpose of the fund raising and medical research." Nonetheless, the registrations are entitled to the Section 7(b) presumptions and may be considered, at most, highly suggestive.

As to the commercial strength of Opposer's marks, the evidence showed that the marks are generally used in conjunction with ST. JUDE'S CHILDREN'S RESEARCH HOSPITAL. The record did not show that the CURE4KIDS marks are commercially strong. And so this particular evidence was considered neutral.

As to the marks, the Board found Applicant's marks CURE KIDS and CURE KIDS USA to be similar to Opposer's CURE4KIDS mark. As to the other three marks of Applicant, however, they are different from Opposer's mark because the include other source identifying words and designs. Keeping in mind that "Cure Kids" and "Cure4Kids" are highly suggestive, the designs and other wording are "sufficient to distinguish" the marks.

Balancing the duPont factors, the Board sustained the two oppositions against Applicant's standard character marks, but dismissed the three oppositions against Applicant's design marks.

TTABlog query: Why was this decision deemed precedential?

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/14/2011   2 comments

Tuesday, September 13, 2011

Test Your TTAB Judge-Ability: Which One of These Four Mere Descriptiveness Refusals Did the Board Reverse?

Here we go again, all you potential TTAB judges out there! This time the test is just a little bit more difficult. One of these four appeals from Section 2(e)(1) mere descriptiveness refusals was reversed, the other three affirmed. Which was which? [Answer in comments.]

In re Cochlear Limited, Serial Nos. 77634585, 77634587 and 77634590 (August 30, 2011) [not precedential]. [HYBRID for medical software in the field of audiology, implantable prosthetic hearing devices and associated accessories and monitoring equipment, and audiologist services].


In re Harajuku Lovers, LLC, Serial No. 77474909 (September 1, 2011) [not precedential]. [Refusal of the mark shown below on the ground that the Japanese characters ベイビーcomprise the merely descriptive word "baby" and must be disclaimed, for certain skin care and hair care products].



In re Keith Stonebraker, Serial No. 77613568 (September 2, 2011) [not precedential]. [KAMO KIDS for "disposable diapers'].


In re Momentum Insights, Inc., Serial No. 77815534 (September 2, 2011) [not precedential]. [FRIENDS & FAMILY REWARDS PROGRAM in standard character form, for "on-line web site that enables business management, tracking and registration of referral sources in the field of motor vehicle sales" [REWARDS PROGRAM disclaimed]].


Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/13/2011   7 comments

Monday, September 12, 2011

Precedential No. 21: Two Cuban Corporations Have Standing to Bring Section 2(e)(3) Cancellation Petition

Two Cuban corporations sought to cancel a Supplemental Registration for the mark PINAR DEL RÍO for cigars, on four grounds: Section 2(a) deceptiveness; Section 2(e)(3) geographically deceptive misdescriptiveness; violation of the Pan American Convention because the mark is an indication of geographical origin or source but the goods do not come from that place; and fraud. Respondent Rodriguez moved to dismiss for lack of standing. The Board denied the motion, ruling that the Board has subject matter jurisdiction and that Petitioners have standing. Corporacion Habanos, S.A. and Empresa Cubana del Tabaco, d.b.a. Cubatabaco v. Juan E. Rodriguez, 99 U.S.P.Q.2d 1873 (TTAB 2011) [precedential].


The Board explained that "the Cuban Assets Control Regulations ('C.A.C.R.'), 31 C.F.R. part 515 et seq., which implement the United States trade embargo against Cuba, generally prohibit transactions in the United States involving property, including trademarks, in which Cuba or a Cuban National has an interest, unless licensed or exempt."

A general license authorizes transactions related to the registration and renewal of trademarks in which Cuba or a Cuban national has an interest. *** Transactions by or on behalf of Cuba or Cuban nationals that are not authorized by the general license, such as a cancellation petition on the grounds that a trademark is geographically deceptively misdescriptive, must be authorized by a specific license issued by the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC).

Petitioners had obtained a specific license from OFAC, authorizing them to:

file and prosecute a cancellation petition in the Trademark Trial and Appeal Board of the United States Patent and Trademark Office to the registration 'PINAR DEL RIO' for cigars filed by or registered to Juan E. Rodriguez, Gretna, Louisiana, Reg. No. 3542236.

Respondent Rodriguez, relying on Empresa Cubana del Tabaco v. Culbro Corp., 478 F.Supp.2d 513 (S.D.N.Y. 2007), contended that Petitioners may have standing to cancel his registration only if the cancellation "is related to an effort by petitioners to have the USPTO accept an application filed by petitioners to register a similar competing mark." The Board, however, distinguished that case on several grounds: first, that decision concerned Article III standing, but the TTAB is not an Article III court; second, Culbro involved the issue of whether the acquisition of "a priority right under Trademark Act Section 43(a), through advertising in the United States, where the goods were available for purchase only outside the United States, amounted to the acquisition of a property interest under Trademark Act Section 43(a), and thus a transfer of property to the Cuban plaintiffs which had to be specifically licensed."

Here, there was no requirement that Petitioners establish a property right in order to succeed on its claims under Sections 2(a) and 2(e)(3). Furthermore, Petitioners obtained a specific license from OFAC for the cancellation, and so the Board had subject matter jurisdiction.

As for standing, ownership of a trademark registration is not required under Sections 2(a) or 2(e)(3). Petitioners alleged that their world-wide business in exporting cigars (except to the USA) would be damaged by Respondent's use of his deceptive and misdescriptive mark. Thus, Petitioners alleged a real interest in this proceeding, and they have standing.

Moreover, where, as here, the pleaded ground is that the mark sought to be cancelled is deceptive under Section 2(a), or primarily geographically deceptively misdescriptive under Section 2(e)(3), petitioners do not need to own a pending application for the mark, do not have to be using the term as a mark, or even use the term at all, in order to establish their standing.

The Board then reviewed Petitioners' pleading and found that it adequately alleged a claim under Section 2(e)(3). Because Petitioners had standing for at least one claim, they are permitted to assert "any other legally sufficient ground as well, including the claims based on Section 2(a), the Pan American Convention and fraud."

TTABlog comment: This is one of several Board decisions in the past two years, allowing foreign entities to pursue TTAB proceedings despite their lack of trademark rights here: see Petróleos Mexicanos v. Intermix S.A., 97 USPQ2d 1403 (TTAB 2010) [precedential] (foreign petitioner need not allege proprietary rights in its name for purposes of standing to bring Section 2(a) claim); Fiat Group Automobiles S.p.A. v. ISM, Inc., 94 USPQ2d 1111 (TTAB 2010) [precedential] (foreign owner without use of its mark in the United States may bring a claim for dilution based on the fame of its mark here, provided that it has filed an application to register the mark in this country).

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/12/2011   0 comments

Friday, September 09, 2011

Experienced IP Attorney Specializing in Trademarks and Computer/Internet Law Seeks Corporate Position in Chicagoland Area

IP Attorney with more than 14 years of experience seeks in-house/corporate position in Chicagoland area. Expertise includes all aspects of trademark clearance, prosecution, registration and international enforcement as well as advertising and social media, computer, copyright, counterfeiting and customs procedures, e-commerce, global trade compliance, licensing and transfers, mergers, acquisitions and strategic alliances, and a full range of related sophisticated commercial transactions. Licensed in the District of Columbia, Illinois and Michigan. Send inquiries to John L. Welch (jwelch at lalaw.com) to arrange for an introduction.

posted by John L. Welch @ 9/09/2011   0 comments

Test Your TTAB Judge-Ability on this "KICK ASS" 2(d) Coffee Opposition

Here's the situation: Applicant Coffee Brake sought to register the mark KICK AX COFFEE GET BIG WOOD WITH OLD GROWTH BLEND COFFEE & Design, in the form shown below, for coffee [COFFEE, BLEND. and the designs of coffee beans disclaimed]. Opposer Kicking Horse claimed likelihood of confusion with its mark KICK ASS, in standard character form, for coffee. Who got the axe? Who kicked ass? You be the judge. Kicking Horse Coffee, Ltd. v. The Original Coffee Brake, Opposition No. 91193625 (August 23, 2011) [not precedential].


After the opposition was filed, Opposer Kicking Horse amended its registration under Section 7(e) from KICK ASS COFFEE to KICK ASS. The parties opted for the Board's ACR procedure, submitting their testimony via affidavit.

Since the involved goods are identical, the Board presumed that they travel through the same trade channels to the same classes of consumers. Opposer claimed that its mark has achieved widespread recognition, but its evidence fell short. It argued that the renown of its mark in Canada "can spill over" into this country, but it failed to show any renown in the USA.

On the other hand, Applicant Coffee Brake failed to show that the KICK ASS mark is weak: it pointed to the marks BAD ASS, GOLDEN KICK, HALF ASS, TRUE KICK, and WILD ASS for coffee, but the Board found those marks [too stupid? no] too different from KICK ASS to have probative value. Moreover, third-party registrations are not evidence of use or recognition of the marks. Likewise, Applicant's evidence of four third-party uses of KICK ASS in connection with coffee was unaccompanied by evidence of the extent of use.

As to the similarity of the marks, the Board noted once again that when the goods are identical a lesser degree of similarity is necessary to support a likelihood of confusion finding.

The Board concluded that consumers would refer to Applicant's coffee as KICK AX COFFEE because they will shorten the longer phrase. In fact, Applicant refers to its coffee as KICK AX COFFEE in its marketing materials. Of course, KICK AX COFFEE and KICK ASS are similar in appearance and sound.

As to meaning, KICK ASS connotes "powerful aggressive flavor." KICK AX COFFEE, however, does not have a readily understood meaning; it is used as a "play on the logging culture." Since it does not have any meaning, consumers will associate KICK AX with the more familiar term "Kick ass."

The Board concluded that the similarities in the marks, which are not likely to be seen side-by-side, outweigh their differences.


Finally, Applicant pointed to the lack of actual confusion between the marks, but the evidence did not show that there has been a reasonable opportunity for actual confusion to have occurred. Although both parties sell their goods in Oregon, Applicant's goods are sold at its coffee shop and at local farmer's marks, while Opposer's goods are sold at supermarkets and drug stores. The Board concluded that any overlapping sales and advertising is de minimis.

Balancing the relevant duPont factors, the Board found confusion likely and it therefore sustained the opposition.

TTABlog Queries: KICK ASS coffee couldn't possibly come in a decaf version, could it? Suppose someone came out with KISS ASS coffee (maybe decaf). Would that be confusingly similar to KICK ASS? How about KISS ASS for tea?

Text Copyright John L. Welch 2011.

posted by John L. Welch @ 9/09/2011   1 comments