Test Your TTAB Judge-Ability: Which Two of these Four Section 2(d) Refusals Were Reversed?
I once heard a TTAB judge tell an audience that the outcome of most Section 2(d) likelihood of confusion cases may be predicted just by looking at the marks and the identified goods/services, without more. Well, your would-be Honor, try your skills on these four appeals. Which two of the four refusals were reversed (counting the two BITES of BOSTON marks as one)?
In re Alison Raffaele Cosmetics, Inc., Serial No. 77325348 (August 16, 2013) [not precedential] [Refusal to register FRUTTA DI VITA for "Cosmetics and cosmetic preparations; Concealers; Cosmetic facial blotting papers; Cosmetic sun-protecting preparations; Cosmetic sun-tanning preparations," in view of the registered mark FRÜT A VIE for "Cosmetic creams for skin care; Cosmetic preparations for skin renewal; Skin and body topical lotions, creams and oils for cosmetic use; Wrinkle removing skin care preparations"].
In re Fairview Import Corp., Serial No. 85395780 (August 16, 2013) [not precedential] [Refusal to register the mark HERITAGE COLLECTION & Design, shown below, for "cases for eyeglasses and sunglasses; cases for spectacles and sunglasses; chains for spectacles and for sunglasses; eyewear, namely, sunglasses, eyeglasses and ophthalmic frames and cases therefor; frames for spectacles and sunglasses; lenses for sunglasses; spectacles and sunglasses; sunglass lenses; sunglasses" [COLLECTION DISCLAIMED] in view of the registered mark HERITAGE 1981for "eyewear, namely, sunglasses" [1981 disclaimed]].
In re Bites of Boston Food Tours, LLC, Serial Nos. 85376420 and 85397975 (August 15, 2013) [not precedential] [Refusal of BITES OF BOSTON and BITES OF BOSTON FOOD TOURS & Design (see below) for "entertainment and educational services, namely, conducting cultural and culinary guided walking tours of neighborhoods, restaurants, and specialty food shops" in view of the mark BITE OF SEATTLE for "organizing, conducting, and supervising food festivals"].
In re Victor Quintana, Serial No. 77916753 (August 13, 2013) [not precedential] [Refusal to register EQUILIBRIO WELLNESS and Design (see below) for "physical fitness training services; providing fitness and exercise studio services, namely, pilates instruction and training" and for "food nutrition consultation; health care services, namely, wellness programs," in view of the registered mark EQUILIBRIO for "providing information, counseling and consulting services in the field of exercise, and physical fitness via a global computer network, mobile phones, and wireless handheld computers; Providing information, counseling and consulting services in the fields of health, wellness, diet, nutrition, stress management, sleep management, medication, and vital sign monitoring via a global computer network, mobile phones, and wireless handheld computers; Personal lifestyle consulting services; providing information, counseling and consulting services in the field of personal lifestyle management via a global computer network, mobile phones, and wireless handheld computers"].
Read comments and post your comments here.
TTABlog note: In the BITES OF BOSTON logo, how many of those Boston landmarks can you name?
Text Copyright John L. Welch 2013.
posted by John L. Welch @ 8/29/2013
7 comments
7 Comments:
The only one that I feel is not confusingly similar is BITES OF BOSTON and BITE OF SEATTLE.
The "s" in "bites" makes all the difference, as it transforms the phrase.
WOW! I did not see the reversal coming in the HERITAGE COLLECTION & Design v HERITAGE 1981 case. And there was a dissent too! Way to bury the lede, John. :)
As much as I'm generally in favor of the Board giving a little weight to distinctive design elements in marks, I find the Board's reliance on the applicant's big moose design element a bit worrisome because the cited mark is registered in standard characters. Conceivably the registrant could also put a big picture of a moose (or some other sufficiently similar member of the deer family) above the wording in its own HERITAGE mark.
I think it was pretty obvious as to HERITAGE which is sooooo diluted.
Why don't you ever post the answers to your quizes at the end? I wish I had the time to look up these cases, but I just don't.
or post the answers as the first comment post . . . .
or post the answers as the first comment
In the future, I will post the answer(s) in the first comment. Thank you for reading.
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