Test Your TTAB Judge-Ability: Which One of these Section 2(d) Refusals Was Reversed?
Readers did well on Wednesday's mere descriptiveness test. So try your skill on these five Section 2(d) appeals. As previously noted, some say that one may predict the outcome of a likelihood of confusion case just by looking at the marks and the goods or services involved. How do you think these five cases came out? By the way, do you see any "WYHA?" cases here?
In re Insurance Auto Auctions, Inc., Serial No. 77663407 (July 5, 2012) [not precedential]. [I-BID LIVE for “providing real-time online auction services, namely allowing potential buyers of salvage vehicles to bid in real time over the internet along with other live and internet bidders” [LIVE disclaimed] refused registration over the mark shown immediately below for "computerized on-line retail store services in the fields of automotive collectibles, memorabilia, and apparel; [and] organization of internet auctions” [MOTORS disclaimed]].
In re Shurtech Brands, LLC, Serial No. 85171209 (July 5, 2012) [not precedential]. [Refusal of SHAPE for “painter's masking tapes in roll, sheet and pad form for use in painting interior building walls and woodwork,” in view of the identical mark for “paints and lacquers”]
In re Airborne Athletics, Inc., Serial No. 76699839 (July 2, 2012) [not precedential]. [DRILL WIZARD for “athletic training equipment, namely, computerized controls sold as a component of ball-delivery training machines for setting up and executing machine assisted training routines for ball sports” [DRILL disclaimed], refused registration in view of SHOT WIZARD for “basketball training devices, namely, devices for placing over basketball rims to aid in shot training” [SHOT disclaimed]].
In re The Trenton Corporation, Serial No. 77555997 (June 26, 2012) [not precedential]. [GUARD-WRAP on “coatings and chemical compounds, namely, anti-corrosion and protective coatings for metal structures, pipes, piping, bridges, and aboveground and underground utility structures,” refused registration over GUARDWRAP for “barrier material, namely, flexible plastic sheeting, used in the construction industry to protect structures from wind and moisture”].
In re Donald E. Moriarty, Serial No. 77946129 (June 26, 2012) [not precedential]. [HAUT COZEES for “clothing, namely, pants, denim pants, cargo pants, capri pants, stretch pants, jogging pants” refused registration in view of COZEEZ for “slippers”; “sleeping garments, namely, pajama tops and bottoms, nightgowns, sleepwear, [and] night shirts”; and “baby newborn and infant layette apparel, namely, creepers, hats, booties, blankets, rompers, coveralls, outwear jackets”]
TTABlog hint: This is not an easy test, is it? The answer is found in the first comment.
Text Copyright John L. Welch 2012.
posted by John L. Welch @ 7/20/2012
4 comments
4 Comments:
The third one, DRILL WIZARD, was reversed.
After reading these cases, I am struck by how superficial the analysis tend to be. In each of the cases, I feel that the Board is shooting from the hips. For instance, with I-BID LIVE versus IBID MOTOR, the Board seems to effectively giving the registrant rights as if it has a family of marks. In the Guard-Wrap versus GUARDWRAP, it pulled out the case King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 U.S.P.Q. 108, 109 (CCPA 1974) (likelihood of confusion is to be avoided as much between weak marks as between strong marks.) This case seems to be used to ignore the history of cases discussing the narrow protection of weak marks. This is not to suggest the decisions were wrong, but the analysis should not just be a collection of form paragraphs.
I might be showing my age, but am I the only one who initially read ibid as ibid (as in a footnote)? That's a significant difference from "I bid". And what about the double entendre of "I bid" as in "I am placing a bid" versus the "i bid" as in internet bidding? Has "i-_____" become generic for any technology related product?
Are there cases on these issues? Am imissing the point?
I breathed a sigh of relief when I saw that the DRILL WIZARD refusal was reversed. For a brief moment, I was questioning whether I understood anything about likelihood of confusion!
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