Wednesday, April 24, 2013

What is the Likelihood That the TTAB Will Affirm a Section 2(d) Refusal? 90%

I recently looked at the TTAB's FOIA page in an attempt to determine, or at least estimate, the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board during the calendar year 2012. I counted 229 Section 2(d) refusals, of which 208 were affirmed and 21 reversed. That's an affirmance rate of 91.7%. So let's say there's a 90% chance of affirmance.

Five of the decisions were precedential: TALENT ASSURANCE/JOB ASSURANCE, ANYWEAR, GRAND HOTEL, COLOMBIANO COFFEE HOUSE, and FUTURA. The ANYWEAR and GRAND HOTEL cases were reversals.

NB: Some cases involved a mark in standard character and stylized form, and I counted that situation as one refusal.

Read comments and post your comment here.

Text Copyright John L. Welch 2013.


At 12:23 PM, Anonymous Paul Reidl said...

That is a lot higher than I thought. The statistics give new meaning to WYHA.

At 1:59 PM, Anonymous Anonymous said...

When I was a student extern there several years ago, I was asked to compile statistics on ex parte appeals. I used the figures for the prior twelve years. For 2(d) issues during that time, (roughly 2500 applications), the affirmance rate was 82%. The high was 89% and the low was 73%. So the current number is not surprising. Thanks for sharing it.

At 7:43 PM, Anonymous Carole Barrett said...

To paraphrase, it is easier for a camel to go through the eye of a needle than it is to reverse a 2(d)refusal...

At 8:27 AM, Anonymous Anonymous said...

I wonder what the rate is for an Examining Attorney maintaining a 2(d) refusal after arguments are submitted? It would be hard to get the data, but valuable for advising clients.

At 1:21 PM, Anonymous Timothy J. Lockhart said...

Very useful information! Thanks for providing it.

Does anyone know what percentage of opposers are successful when the Examining Attorney did not cite the opposer's mark against the application being opposed?


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