Wednesday, January 22, 2014

What is the Likelihood of TTAB Affirmance of a Section 2(d) Likelihood of Confusion Refusal?

I reviewed the TTAB's FOIA page in an attempt to estimate the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board during the calendar year 2013. I counted 260 Section 2(d) refusals, of which 219 were affirmed and 41 reversed. That's an affirmance rate of 84.1%. So let's say the odds are 5 out of 6 for affirmance. [Last year, the affirmance rate was about 90%, according to the TTABlog posting here].



Only two of the decisions were precedential: The first was In re Sela Products, LLC, 107 USPQ2d 1580 (TTAB 2013) [TTABlogged here], in which the Board affirmed a Section 2(d) refusal of the mark SFORZA for mounting brackets and accessories for speakers and televisions, in view of the registered mark FORZA POWER TECHNOLOGIES for surge protectors and other electrical items. In the same decision, however, it reversed a refusal of SFORZA over the regsitered mark FORZA MILAN! ACM 1899 & Design, for various goods, including optical and electrical cables and sound and image recording and transmission apparatus. In the first refusal, Sela argued that certain statements made in the file history of the cited registration should be considered by the Board, but the Board pointed out that the file history was not made of record, and even if it had been, those statements were made in a very different context: an attempt to distinguish the FORZA TECHNOLOGIES MARK over a citation of the mark FORZA for a hydrogen fuel cell power generator.

The second precedential decision was In re Midwest Gaming & Entertainment LLC, 106 USPQ2d 1163 (TTAB 2013) [TTABlogged here], wherein the Board affirmed a refusal to register the mark LOTUS for "bar services located in a casino," finding it likely to cause confusion with the identical mark registered for "providing banquet and social function facilities for special occasions; restaurant and bar services." Applicant Midwest argued that the "restaurant and bar services" of the cited registration must be considered in the context of the entire recitation of services and therefore read narrowly to be services offered in connection with "banquet and social function facilities for special occasions." The Board disagreed.

Three Section 2(d) decisions are on appeal to the CAFC:

In re St. Helena Hospital, Appeal No. 14-1009 (Serial No. 85416343, June 25, 2013). 

In re BabyCakes NYC, Inc, Appeal No. 13-1659 (Serial No. 85214746, July 23, 2013).

In re Waves Licensing, LLC, Appeal No. 14-1202 (Serial No. 85437501, September 30, 2013).

NB: Some cases involved a mark in standard character form and in stylized or design form, and I counted that situation as one refusal. Also some cases included a refusal of the mark over two different registered marks. I counted that as one affirmance when both refusals were affirmed, or one reversal if both were reversed.

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Text Copyright John L. Welch 2014.

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