Monday, March 31, 2014

TTABlog Quarterly Index: January - March 2014

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Section 2(a) - False Association:
Section 2(a) - Scandalous or Immoral:
Section 2(c) - Consent of Living Individual:
Section 2(d) - Likelihood of Confusion:


Section 2(e)(1) - Mere Descriptiveness:
Section 2(e)(1) - Deceptive Misdescriptiveness:
Section 2(e)(3) - Primarily Geographically Deceptively Misdescriptive:
Section 2(e)(5) - Functionality:
Section 2(f) - Acquired Distinctiveness:
Dilution:
Genericness:
Identification of Goods:
Lack of bona fide Intent:
Non-use:
Phantom Mark:
Specimen of Use:
Concurrent Use:

Discovery/Evidence/Procedure:
Other:
Text and first two phoots Copyright John L. Welch 2014. Third photograph Copyright Peter D. Welch 2014.

posted by John L. Welch @ 3/31/2014   0 comments

CAFC Affirms TTAB: STONE LION CAPITAL Confusable With LION and LION CAPITAL for Financial Services

The U.S. Court of Appeals for the Federal Circuit affirmed the TTAB's decision (here) sustaining an opposition to registration of the mark STONE LION CAPITAL for "financial services, namely investment advisory services, management of investment funds, and fund investment services." The Board found the mark likely to cause confusion with the registered marks LION and LION CAPITAL for (in part) identical financial services. Stone Lion Capital Partners, L.P. v. Lion Capital, LLP, 110 USPQ2d 1157 (Fed. Cir. 2014) [precedential].


Stone Lion challenged the Board's finding as to the first, third, and fourth duPont factors, contending that the Board conducted an erroneous comparison of the marks, erred in analyzing the purchasers and trade channels, and  improperly dismissed purchaser sophistication and conditions of sale.

As to the marks, the court found that the Board properly considered whether the marks were similar in sight, sound, meaning, and overall commercial impression. There was no error in reasoning that LION was dominant in the parties' marks, and the Board properly rested its ultimate conclusion upon a consideration of the marks as a whole.

Stone Lion argued that the Board gave insufficient weight to statements made by the opposer during prosecution of its LION CAPITAL application when distinguishing a third-party mark, ROARING LION. The court, however, observed that a party's prior statements may be "illuminative of shade and tone in the total picture" but do not change the Board's obligation to reach its own conclusion on the record before it. [Citing Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F. 2d 926, 929 (CCPA 1978)].

With regard to the third duPont factor, the Board noted that the involved application and registration contained no limitations on the channels of trade or classes of customers, and it therefore presumed that the parties' services travel through all normal channels of trade to the same classes of customers.

Stone Lion contended that the Board's findings were not supported by substantial evidence because the parties' actual investors did not overlap. However, the court pointed out, the question of registrability of an applicant's mark must be determined in view of the recitation of services set forth in the application, regardless of real-world conditions. Even if there were no actual overlap in the parties' customers, the Board was correct in declining to look beyond the application and registrations at issue.

Similarly, as to the fourth duPont factor, the Board properly focused on all potential customers for the involved services as recited in the application and registrations. Stone Lion's application included "investment advisory services," and Lion's registrations included "capital investment consultation." Those services are not restricted to high-dollar investments and sophisticated consumers but rather could be offered to, and consumed by, ordinary consumers seeking investment advice. The court pointed out that the Board must consider "the least sophisticated" consumer in its analysis. The court further observed that applicants who choose to recite services in their trademark applications that exceed the scope of their actual services "will be held to the broader scope of the application."

Substantial evidence supported the Board's finding that, although ordinary consumers will exercise care when making financial decisions, they "are not immune from source confusion when similar marks are used in connection with related services."

In sum, the Board properly determined that the first four duPont factors favored a finding of likely confusion, and the remaining factors were neutral. And so the appellate court affirmed the Board's decision.

Read comments and post your comment here.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/31/2014   0 comments

Friday, March 28, 2014

Precedential No. 12: TTAB Reverses Section 2(c) Refusal of FRANKNDODD for Legislative Information Services

The Board reversed a Section 2(c) refusal to register the mark FRANKNDODD for "providing legal information relating to legislation and law updates," finding that the mark would be understood by relevant consumers as referring to and commenting on the Dodd-Frank Act, rather than specifically identifying former Congressman Barney Frank and former Senator Chris Dodd. Consequently, their consents to registration were not required. In re Morrison & Foerster LLP, 110 USPQ2d 1423 (TTAB 2014) [precedential].


Congressman Frank and Senator Dodd were the main contributors to the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the bill was named after them. The examining attorney relied on internet articles and blog postings referring to the act, but in all cases the term "Dodd-Frank" was used to refer to the legislation and not the legislators: i.e., Senator Dodd and Congressman Frank were not referred to individually or collectively as "Dodd-Frank."

The examining attorney also submitted printouts of six online posting referring to the designation FRANKNDODD or FRANKENDODD: one referred to applicant's use of the term; four to the Act itself (although one was somewhat ambiguous because it alluded to the two individuals); and the sixth used the designation to refer to the individuals.

Applicant submitted three internet articles that referenced the FRANKNDODD mark and services, and mentioned the allusion that applicant sought to make between the Dodd-Frank Act and the monster in Mary Shelley's Frankenstein. [Oh, my, how exceedingly clever!!! - ed.]. The articles did not mention the two individuals.

Section 2(c) of the Trademark Act prohibits the registration of any mark that "[c]onsists of or comprises a name ... identifying a particular living individual except by his written consent." The Section 2(c) bar applies not just to full names, but to nicknames, surnames, etc., that identify a particular living individual. A name is considered to "identify" a particular individual only if the individual "is so well known that the public would reasonably assume the connection (with the goods or services), or because the individual is publicly connected with the business in which the mark is used."

Here, there was nothing to suggest that Congressman Dodd or Senator Frank were connected with applicant's services of providing legal information. The question then was whether they were so well known that the public would reasonably assume a connection between them and applicant's identified services offered under the FRANKNHOOD mark. The Board concluded that the record did not support such a conclusion.

The evidence reflected that when the Dodd and Frank surnames are combined in the media, the reference is to the Act, not the individuals. The record did not support the examining attorney's assertion that the Act and the two individuals have become synonymous in the eyes of the public. Nor did the evidence demonstrate that FRANKNDODD has become a nickname for the two legislators. The single blog post that clearly uses that term to refer to the two legislators is insufficient to support such a finding, particularly given the dearth of information regarding the audience for that blog post.

The reversal of the order of the names and the addition of the letter "N" creates an allusion to the Frankenstein monster, an allusion that has been echoed by some commentators who have drawn an analogy between the scope of the Dodd-Frank Act and the monster (one commentator observing that Dodd-Frank is "bolted together from 15 separate laws").

In sum, the evidence of record demonstrated that FRANKNDODD would be understood by the relevant consuming public as referring to and commenting on the Dodd-Frank Act rather than as specifically identifying Congressman Frank and Senator Dodd. Therefore the Section 2(c) refusal, based on the failure to provide their consents to registration, was reversed.

Read comments and post your comment here.

TTABlog note:  What about a mere descriptiveness refusal?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/28/2014   2 comments

Thursday, March 27, 2014

Mark Your INTA Calendars: "MEET THE BLOGGERS X" Set For Monday, May 12th, 8-10 PM

The tenth annual "Meet the Bloggers" gathering will take place on Monday night, May 12th, from 8-10 pm, at the Royal Hong Kong Yacht Club. Watch this blog for more details. [A tip of the TTABlog fedora to Marks & Clark for its sponsorship of the event.]


Here's a (bad) photo of last year's quintet of hosts at "Meet The Blogger IX" in Dallas, Texas. Can you name them? [Don't be a wise guy: I mean their real names!]


Read comments and post your comment here.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/27/2014   1 comments

Precedential No. 11: TTAB Affirms Genericness Refusal of CHURRASCOS (Stylized) for Restaurant Services

Despite the applicant's ownership of a registration for the mark CHURRASCOS, in standard character form, for "restaurant and bar services; catering," the Board affirmed a genericness refusal of CHURRASCOS in the stylized form shown below, for the same services. The Board also affirmed an alternative refusal based on Section 2(e)(1) mere descriptiveness and lack of acquired distinctiveness. In re Cordua Restaurants LP, 110 USPQ2d 1227 (TTAB 2014) [precedential].


Genericness: The Board found that Examining Attorney Asmat Khan had provided the requisite clear evidence to establish that the relevant consumers of restaurant services (the general public) understands that "churrascos" is generic for a type of restaurant, namely, a restaurant that serves "churrascos." Dictionary definitions established that "churrasco" is "meat cooked over an open fire." Media articles referred to "churrasco" restaurants, and applicant's own evidence supported a finding that "churrasco" is generic for a type or preparation of "steak." A term that is generic for a particular category of goods is likewise generic for service directed to or focused on those goods. Because "churrasco" is generic for restaurant services, registration must be refused even though additional services (in the same class) are recited in the application.

Applicant conceded that the specialty of its restaurants is the churrasco. A term that identifies the primary or central focus of an applicant's services is generic for those services. [E.g., TIRES TIRES TIRES for retail store services; LENS for online retail services featuring contact lenses].

The display of applicant's applied-for mark does not create a separate commercial impression such that the proposed mark would be registrable (with a disclaimer of "churrascos").

Prior Registration: Applicant's ownership of a registration for the standard character mark CHURRASCOS for the same services was of no help. "Trademark rights are not static, and eligibility for registration must be determined on the basis of the facts and evidence of record that exist at the time registration is sought." In short, the examining attorney and the Board are not bound by the decision of the examining attorney who examined the application for applicant's previously registered mark.

Descriptiveness and Acquired Distinctiveness: For the purpose of completeness, the Board considered applicant's argument that the applied-for mark had acquired distinctiveness under Section 2(f). Applicant pointed to its prior registration as proof of acquired distinctiveness of the subject mark under Rule 2.41(b), but the Board noted that although ownership of a prior registration may be accepted as prima facie evidence of acquired distinctiveness, that is not always the case; further evidence may be required.

Because the term CHURRASCOS, if not generic, is highly descriptive of the type of barbequed steaks that are the specialty of applicant's restaurants, the burden on applicant to show acquired distinctiveness was "especially high." Consequently, its prior registration alone was not enough to establish acquired distinctiveness.

Applicant also relied on a declaration of its Vice President, averring that applicant's average annual income exceeded $8 million and its annual advertising and promotional expenditures topped $79,000. However, there was no evidence as to how the money was spent and no evidence of the effectiveness of the advertising in educating customers to the source significance of "churrascos." As to the sales figures, those numbers alone do not prove secondary meaning. Again, there was no evidence of the extent to which the public perceives CHURRASCOS as indicating applicant as the source of the services.

And so the Board concluded that applicant had failed to prove acquired distinctiveness.

Read comments and post your comment here.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/27/2014   7 comments

Wednesday, March 26, 2014

Precedential No. 10: TTAB Denies Motion to Compel Due to Lack of Good Faith Effort to Resolve Dispute

The Board denied a motion to compel responses to an applicant's interrogatories and production requests, finding that the applicant had failed to satisfy the requirement of Trademark Rule 2.120(e)(1): namely, that the moving party show that it made a good faith effort to resolve the discovery dispute and that the parties were unable to resolve their differences. Here, counsel for the parties merely exchanged brief emails, applicant's counsel noting that responses had not been received and asking when they might be expected, and opposer's counsel promising to check with the client and "get back to you on a time frame for response." Hot Tamale Mama...and More, LLC v. SF Investments, Inc., 110 USPQ2d1080 (TTAB 2014) [precedential].


Even when a party fails completely to respond to discovery, the other party has a duty to contact its adversary to ascertain why it has not received responses and whether the matter can be resolved amicably. If the discovering party is not satisfied with the answer, only then may it file a motion to compel.

[T]he good faith efforts of the parties should be directed to understanding differences and actually investigating ways in which to resolve the dispute. Where it is apparent that the effort toward resolution is incomplete, establishing the good faith effort that is a prerequisite for a motion to compel necessitates that the inquiring party engage in additional effort toward ascertaining and resolving the substance of the dispute.

Here, two weeks after the discovery responses were due, counsel for the parties exchanged brief emails. The Board concluded that this exchange did not satisfy the good faith obligation because applicant did not undertake sufficient effort to resolve the dispute. Applicant merely said what opposer already knew: it had failed to provide responses. Opposer's reply did not state why the responses were overdue, or even when they would be provided.

It was incumbent upon applicant to follow up with opposer not only to ascertain why there were no responses, but also to determine "any underlying circumstances that might have contributed to the non-response and whether any problems could be resolved." In fact, in its responding motion papers, opposer stated that it is a small, closely held company that was moving its operations; its principal did not have the time to address discovery matters. [Maybe it shouldn't have brought the opposition then? - ed]. Applicant could have found this out had it only asked, but instead it filed the motion to compel.

And so the Board denied the motion to compel.

Read comments and post your comment here.

TTABlog note:  The motion to compel was filed on September 11, 2013 and this ruling came down more than six months later. Maybe both sides just wanted a delay? Sort of like a professional foul in soccer: stop the play, no harm done.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/26/2014   1 comments

Tuesday, March 25, 2014

Test Your TTAB Judge-Ability On These Four Section 2(d) Appeals

I once heard a TTAB judge state that the outcome of most Section 2(d) likelihood of confusion cases can 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, keeping in mind that, by my estimate, about 85% of Section 2(d) refusals are affirmed by the Board.


In re Chicken Pickers, LLC, Serial No. 85593576 (March 4, 2014) [not precedential]. [Refusal to register ROCKY'S HOT CHICKEN SHACK for restaurant services [HOT CHICKEN disclaimed], in view of the registered mark ROCKY'S for restaurant and bar services.


In re Leisure Craft Industries, Inc., Serial No. 85384900 (March 12, 2014) [not precedential]. [Refusal to register WEATHERTEX for various items of clothing, including coats and trousers, in view of the registered mark WEATHERTECH for "industrial outerwear, namely, jackets, coats, vests, pants"].


In re Vera Vysosias, Serial No. 85309258 (March 17, 2014) [not precedential].[Refusal to register the mark shown below left, for "entertainment in the nature of basketball games," in view of the registered mark shown below right, for "entertainment in the nature of circleball games" [CIRCLEBALL disclaimed]]. 


In re Parker, Serial No. 85671566 (March 17, 2014) [not precedential]. [Refusal to register AFFORDABLE ORTHODONTICS for "dentist services," in view of the registered mark AFFORDABLE DENTURES for "dental services" [DENTURES disclaimed].


Read comments and post your comment here.

TTABlog Big Hint: They all came out the same way. See any WYHA's here?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/25/2014   4 comments

Monday, March 24, 2014

Pennsylvania District Court Upholds TTAB Functionality Ruling On Plastic Suction Cup Configuration

The U.S. District Court for the Western District of Pennsylvania entered summary judgment in favor of the USPTO in a Section 1071 review of the TTAB's decision in In re Adams Mfg. Corp., Serial No. 85025503 (August 7, 2012) [not precedential]. [TTABlogged here]. The Board had stuck with the PTO in affirming two refusals to register the product configuration shown below for "plastic suction cups, not for medical purposes:" Section 2(e)(5) functionality, and alternatively, lack of acquired distinctiveness. [The applied-for configuration does not include the outer ring or the stem (shown in dashed lines), but only the three-dimensional configuration of the two concentric rings on the cup portion.] Adams Mfg. Corp. v. Rea, Civil Action No. 12-1430 (March 12, 2014).


In the district court, the parties filed cross-motions for summary judgment, and Adams submitted evidence in addition to that presented to the TTAB. The court recognized that because new evidence was presented on a disputed fact question, it must make a de novo finding in order to assess the new evidence together with the evidence before the Board.

The court was particularly concerned with the "undeniable tension between patent law and trademark protection of product designs. "In patent law, the purpose is to encourage innovation while inviting competition; the recipient of a patent is granted a monopoly for a limited time, after which the innovation passes to the public for copying and improvement. *** In contrast, the purpose of trademark is not to encourage invention, but to maintain quality by protecting the reputation of the producer for an unlimited time."

Adams obtained a utility patent in 1991 on a "suction cup for use on windows," which claimed the improvement to a suction cup comprising a "plurality of surface deformations ... such that light rays passing through said suction cup will not converge at a single point." The issuance of the patent gave Adams "a production monopoly for the concentric ring suction cup." The patent expired on May  29, 2010, but Adams had meanwhile filed the subject trademark application.

Adams contended that because there are alternative designs that are equally effective at approximately the same cost of manufacture as its two-ring design, registration of its mark would not adversely affect competition.

The court found that the first two Morton-Norwich factors - the existence of a utility patent claiming the design, Adams' promotion of the utilitarian advantages of the design - led "inescapably" to the conclusion that the subject design is de jure functional and barred from registration by Section 2(e)(5).

The utility patent obtained by Adams was "overwhelming evidence" that the applied-for mark was functional.

A previous utility patent therefore adds "great weight" to the already burdensome statutory presumption that the features are deemed functional. In order to overcome this "heavy burden," a person seeking trade dress after an expired patent must show that the feature is not functional by showing that it is "merely an ornamental, incidental, or arbitrary aspect of the device." (citing TrafFix, 532 U.S. at 30.)

The court found that Adam's concentric-ring design "is the essential feature advocated as the 'central advance'" of its utility patent. The two-ring design was not merely incidental or ornamental. It was the "fundamental purpose of the utility patent, advanced to prevent the danger of converging light rays through clear suction cups attached to windows."

Adams cannot claim that the claimed design was an arbitrary flourish. The design of the Adams' suction cup is necessary to its operation, to prevent light passing through the suction cup from converging on a focal point. As advertised, it is the reason the patented device works, and therefore the two ring design is not random or artistic, but is designed to address a specific safety issue.

As to the second Morton-Norwich factor, the court found that Adams had "consistently and repeatedly touted the utilitarian advantages of its proposed mark."

The existence of alternative designs was irrelevant, because the applied-for design was "influenced by its light diffusing quality, as described in the utility patent an in Adams' product literature." In short, the existence of alternative designs does not render the design nonfunctional or incidental.

Finally, the court agreed with the TTAB's determination that the subject design does not cost significantly more than other designs, nor is it significantly less expensive to manufacture.

Balancing the four functionality factors, the Court concluded that no reasonable jury could find that the subject design was not functional.

TrafFix imposes a heavy burden on Adams to establish that its product promotion and ‘045 Patent do not render the two-ring design functional, a burden which Adams has not met in this case. Because the essential feature of the applied-for mark is the same as the central advance of the patent, there is no material issue of fact which needs to be decided by a finder of fact.


In light of its ruling that registration was barred by reason of functionality, the court found it unnecessary to rule on the issue of acquired distinctiveness.

Read comments and post your comment here.

TTABlog note:  Compare this decision to the Hershey candy bar scoring case, wherein the Board reversed a Section 2(e)(5) refusal to register the configuration of a Hershey bar. [TTABlogged here]. Despite the existence of a utility patent, the Board found most significant the fact that many alternative configurations were available to competitors. But was scoring not the "central advance" of that patent?

On April 18, 2014, Adams filed a notice of appeal to the United States Court of Appeals for the Third Circuit.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/24/2014   1 comments

Friday, March 21, 2014

Eighth Circuit Reverses District Court's Cancellation of Two Section 2(f) Registrations

The United States Court of Appeals reversed a district court ruling that ordered cancellation of registrations for the marks LOVELYSKIN and LOVELYSKIN.COM for skin care products and online retail services. The registrations issued under Section 2(f) based on declarations of 5 years of continuous and substantially exclusive use. Defendant Ishtar claimed that the use of the marks had not been substantially exclusive during the 5-year period, but its proofs fell short. Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC, 110 USPQ2d 1071 (8th Cir. 2014).


The appellate court observed that Ishtar, "as the party seeking cancellation, had both the initial burden to establish a prima facie case that Lovely Skin's trademarks had not acquired distinctiveness at the time of the registrations and the ultimate burden of persuasion to prove that Lovely Skin's trademarks were invalid by a preponderance of the evidence."

In attempting to prove that Lovely Skin's trademarks had not acquired distinctiveness because they had not been in substantially exclusive use during the five years claimed, the only evidence it provided consisted of several federal trademark registrations and state business entity registrations for marks or business names that contained the terms "love" or "lovely" in combination with "skin," along with testimony from three individuals who were involved in the application process for Lovely Skin's trademarks. That evidence had led the court to conclude that Ishtar had met both its initial and ultimate burden of proof.

The appellate court pointed out that the probative value of evidence of third-party marks and names "depends wholly on their usage." It these other marks or names "were not used in a meaningful way," they do not undermine Lovely Skin's claim of acquired distinctiveness.

Ishtar did not provide evidence as to whether or how these third-parties had used their marks and names, whether or how they had promoted them, and whether they had achieved any public recognition. These mere registrations of marks and business names "cannot overcome the strong presumption of validity" enjoyed by Lovely Skin's registrations.

As to the testimony offered by Ishtar, it showed only that Lovely Skin no longer has evidence to prove acquired distinctiveness as of the date of registration. However, the burden of proof was on Ishtar to establish a prima facie case that the trademarks had not acquired distinctiveness, and it failed to meet that burden.

Moreover, even if Ishtar had made out a prima facie case, it did not meet its ultimate burden, because Lovely Skin presented evidence of significant advertising expenditures and sales growth during the five years preceding registration. Ishtar then did not counter with any additional evidence.

Therefore the appellate court reversed the distinct court's judgment canceling the two registrations.

The court, however, affirmed the district's court's ruling dismissing Lovely Skin's claim of trademark infringement, finding no likelihood of confusion between Lovely Skin's marks and Ishtar's website at www.livelyskin.com.

Read comments and post your comment here.

TTABlog note:  In the recent ANNAPOLIS TOURS decision [TTABlogged here], also involving a registration issued under Section 2(f) based only upon a 5-year use declaration, the Board ruled that the challenged mark was "highly descriptive" and therefore that additional evidence was required from respondent to establish acquired distinctiveness. [Apparently, in the Board's view that presumption of validity is not so strong after all]. The Board found respondent's additional proof inadequate to overcome the prima facie case established by the petitioner. That decision is now on appeal to the CAFC.

By the way, why should the presumption of validity be "strong" if the registrant has relied only upon a 5-year declaration to establish acquired distinctiveness? The Examining Attorney makes no investigation of third party uses. All he or she has is the registrant's statement.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/21/2014   2 comments

Thursday, March 20, 2014

Test Your TTAB Judge-Ability On These Three Mere Descriptiveness Refusals

Here are three recent appeals from mere descriptiveness refusals under Section 2(e)(1). Let's see how you do with them, keeping in mind that the Board affirms, in my estimation, more than 80% of these refusals. By the way, do you see any WYHA's here?



In re Murphy Bed Concepts, Inc., Serial No. 85422382 (March 13, 2014) [not precedential]. [Mere descriptiveness refusal of MURPHY DESKBEDS for "furniture, namely, desks that are able to be converted to beds"].


In re OnForce, Inc., Serial No. 85422547 (March 13, 2014) [not precedential]. [Mere descriptiveness refusal of FIELD SERVICES CLOUD for "Providing a virtual marketplace connecting businesses and consumers with providers of goods and services via global computer networks, wireless networks, email or telephone; promoting the goods and services of others via global computer networks, wireless networks and email; providing a website whereby buyers and sellers transact business, monitor progress of goods and services, and provide evaluative feedback; providing real-time business information about companies, industries and markets; providing online business information directories featuring service providers and service buyers such as computer manufacturers and retailers; providing an interactive website on a global computer network for service providers to post information about their services and qualifications for providing the services, respond to service requests from third parties, and place and fulfill orders for products, services and business opportunities"].


In re Clic Goggles, Inc. Serial Nos. 85880646 and 85880679 (March 17, 2014) [not precedential]. [Mere descriptiveness refusals of EZ SNAP EYEWEAR and SNAP EZ EYEWEAR for "eyewear"].


Read comments and post your comment here.

Big TTABlog hint: They all came out the same way.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/20/2014   3 comments

Wednesday, March 19, 2014

TTAB Says "NUCLEAR" Deceptively Misdescriptive of Health Care Services, Must Be Disclaimed

The Board affirmed a refusal to register the mark shown immediately below [CARE PARTNERS and the White-Cross-within-Heart design disclaimed], for "health care" and various related services on the ground that Applicant failed to comply with the Examining Attorney's requirement that NUCLEAR be disclaimed because it is deceptively misdescriptive of the services under Section 2(e)(1). In re Nuclear Care Partners, LLC, Serial No. 85578775 (March 7, 2014) [not precedential].


Examining Attorney William T. Verhosek maintained that "nuclear care" will be perceived as a reference to "nuclear medicine," a field in which imaging devices and radioactive biochemical compounds are used to diagnose and treat diseases. Because applicant services do not involve nuclear medicine, the Examining Attorney argued, the term "nuclear" is deceptively misdescriptive of the services.

Applicant contended that it offers home health nursing agency services exclusively to former workers in the nuclear weapon and energy fields who qualify for no-cost in-home medical benefits because of work-related illnesses. In addition, "nuclear" plays on a reference to "nuclear" families as a place where applicant's nurses provide in-home health care services.

Based upon third-party website evidence, the Board found that in the context of "health care," the "prototypical health care consumer would perceive 'nuclear' or 'nuclear care' as related to 'nuclear medicine.'" Thus the word "nuclear" misdescribes an aspect of applicant's services that they might plausibly possess but do not. That satisfied the first prong of the Section 2(e)(1) test.

The second prong requires proof that the relevant consumers are likely to believe the misrepresentation conveyed by the term "nuclear." Applicant would have the Board limit the relevant consumers to qualified claimants under various federal acts who may receive applicant's services at no cost. The Board pointed out, however, that there are no such limitations in the recitation of services, and therefore it must consider whether the misrepresentation would be believed by all consumers of "health care," i.e., the general public. The Board concluded that consumers are likely to believe the misrepresentation.

Therefore the Board affirmed the requirement that NUCLEAR be disclaimed. Applicant was allowed thirty days to submit a disclaimer of NUCLEAR CARE PARTNERS.

Read comments and post your comment here.

TTABlog comment: Even if Applicant had limited its services to qualified claimants, it presumably would have had to disclaim NUCLEAR as merely descriptive.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/19/2014   4 comments

Tuesday, March 18, 2014

Test Your TTAB Judge Ability: Is "NY" Primarily Geographically Deceptively Misdescriptive for Cosmetics Made Elsewhere?

Nature's Youth, Inc. sought to register the mark NY for "cosmetics, face creams, lotions for cosmetic purposes," but the PTO refused registration under Section 2(e)(3). The applicant failed to respond to a Rule 2.61 request for information about the origin of the goods, and so the Board assumed that they did not originate in New York. Would purchasers mistakenly believe that the goods did originate in New York, and would that belief be material to the purchasing decision? The examining attorney said yes. How do you think this came out? In re Nature's Youth, Inc., Serial No. 85747419 (March 13, 2014) [not precedential].


For a trademark to be refused registration under Section 2(e)(3), the PTO must show that:

(1) the primary significance of the mark is a generally known geographic place;
(2) the goods do not originate from that place;
(3) purchasers would likely believe that the goods did originate in that place; and
(4) that belief would be a material factor in the purchasing decision of a substantial portion of relevant purchasers.

Applicant remained silent as to point 2, but contested points 1, 3, and 4. It maintained that "NY" stands for "Nation's Youth," and has many other meanings as well. The evidence, however, showed that "NY" will primarily be understood as a reference to New York. None of the other meanings relate to the involved goods, and there was no evidence that "NY" has been actively promoted as an abbreviation for applicant's name so as to offset the term's geographical significance.

As to point 3, the evidentiary threshold is not high; little more is required than to show that the consumer identifies the place as a known source of the goods. New York, being a major metropolis, is the home to several of the world's largest "beauty companies" (e.g., Estee Lauder, Avon Products, and Coty). Thus New York is a known source of cosmetics, and a goods/place association exists between New York and the identified goods.

As to point 4, the evidence must show that the (mistaken) belief that the goods come from New York would be material to the decision to purchase the goods.

Generally, the burden to prove materiality will be satisfied if there is evidence showing that the place named in the mark is well known for the goods; or the goods are a principal product of the place named in the mark; or the goods are, or are related to, the traditional products of the place named in the mark, or are an expansion of the traditional products of the place named in the mark.

The Board contrasted this case with  In re Compania de Licores Internacionales S.A., in which significant evidence demonstrated that Cuba and its capital, Havana, are "famous for rum," leading the Board to conclude that "if rum originates from Cuba it would be a material consideration to consumers in deciding whether to purchase."

Here, the limited record did not support a finding that New York is famous for cosmetics, or even that cosmetics are a principal or a traditional product of New York. The evidence submitted by the examining attorney consisted of a Wikipedia entry describing New York as a "major center for ... fashion," an online article stating that the city is home to five companies in the "Top 20 Global Beauty Companies," and an website entry about New York-based cosmetic companies. However, as to the first two items the Board observed, "fashion" is not synonymous with "cosmetics," and the third item was merely a puff piece about supporting local businesses and locally-made products.

In sum, the evidence failed to show that the (mistaken) belief that applicant's goods emanate from New York would play a significant role in the purchasing decision, and so the Board reversed the Section 2(e)(3) refusal.

However, the Board affirmed the refusal to register based upon applicant's failure to respond to the Rule 2.61 request for information.

Read comments and post your comment here.

TTABlog note:  Had applicant answered the Rule 2.61 request, it would have had a registration. Should it re-apply? Would the PTO bolster its case with additional evidence?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/18/2014   12 comments

Monday, March 17, 2014

Precedential No. 9: MINERS For Professional Baseball Goods Confusable With MINERS For Collegiate Sports Goods

Sixteen months after oral argument, the Board sustained two oppositions to registration of the mark MINERS, in standard characters and design form (below), for various printed materials related to professional baseball, in class 16, and "professional baseball imprinted clothing" in class 25. The Board found the marks likely to cause confusion with the registered mark MINERS owned by the University of Texas System and used by the University of Texas at El Paso, for "printed programs for college sporting events and media guides" and for "college imprinted clothing." The Board of Regents, The University of Texas System v. Southern Illinois Miners, LLC, 110 USPQ2d 1182 (TTAB 2014) [precedential].


The University of Texas at El Paso (UTEP) plays 16 collegiate sports, but it has not fielded a baseball team in 20 years. As a result of a prior TTAB proceeding, it has a license agreement with Missouri S&T (f/k/a the University of Missouri at Rolla) that allows MS&T to use the mark MINERS for college entertainment services and for "college imprinted goods" in seven Midwestern states (including Missouri and Illinois). The MS&T baseball team operates under the licensed MINERS mark.

Applicant is a minor league baseball team from Marion, Illinois, that plays in the Frontier League under the name MINERS. The Frontier League consists of teams from six Midwestern states, including Illinois and Missouri.

The Marks: The Board, not surprisingly, found the dominant portion of Applicant's design mark to be the word MINERS, and therefore it deemed the mark similar to UTEP's mark in sound, appearance, meaning, and overall commercial impression.

The Goods: As we know, the greater the similarity between the marks at issue, the lesser the degree of similarity required between the goods to support a finding of likely confusion. Both parties offer, under their respective marks, programs for athletic events and guides for media use, and both offer shirts, hats and baby clothes.

Although most of the class 16 goods listed in UTEP's registration are for "college sporting events," the term "media guides" is not so limited. Nothing in the record clarified how the meaning of this term might be different for collegiate sports teams and professional sports teams. Therefore the Board found that UTEP's "media guides" are not only closely related to applicants "printed guides in the field of professional baseball for media use," but are legally equivalent.

As to the class 25 goods, the question was whether the terms "college imprinted" and the term "professional baseball imprinted" distinguish the goods. The Board took these words to mean merely that the goods will have one of the marks printed on them. There was no evidence to support applicant's assertion that "college imprinted" clothing must bear the school name, or be offered in traditional team colors, or be accompanied by a hangtag or sticker stating "Officially Licensed Collegiate Product." In short, the language "college imprinted" and "professional baseball imprinted" did not distinguish the goods "in any meaningful way."


Trade Channels: Because the class 16 goods of the parties are highly similar, the Board must presume that they travel through the same channels of trade to the same classes of consumers. Even if the term "media guides" in UTEP's registration were modified by the term "collegiate," nothing in the record suggests that they would not be distributed in the same media as applicant's "printed guide in the field of professional baseball for media use." [Wouldn't it be opposer's burden to prove that they do move in the same channels? - ed].

As to the class 25 goods, applicant asserted that its clothing items are sold only online and at its stadium, basically to fans of the Frontier League, whereas UTEP's goods are primarily sold in the Conference USA region to UTEP fans. Irrelevant, said the Board, since there are no such restrictions in the involved applications or cited registrations.

Other duPont Factors: Although the fans of the two parties may exercise care in purchasing the items at issue, the Board could not presume that these are the only purchasers. Some may purchase the goods for other personal reasons, perhaps simply because they like the look of the goods. Moreover because the involved marks are so similar, even sophisticated purchasers might be confused as to source.

Applicant argued that the existence of the MS&T license weakened opposer's mark since it allowed two colleges to use the same mark simultaneously in overlapping areas. Although skeptical about whether "this sort of agreement between otherwise unrelated universities is indeed a trademark license that indicates to consumers one source and one quality standard," the Board did not find sufficient evidence to require a downgrading of the strength of opposer's marks.

Finally, the lack of evidence of actual confusion was not significant because applicant had been in operation for only two years before discovery closed (in 2009). And opposer's assertion of bad faith went nowhere, since there was no evidence that applicant adopted its mark with an intent to trade on UTEP's marks. In fact, the evidence showed that applicant chose the name MINERS as a tribute to the coal mining tradition in Southern Illinois.

Resolving any doubt in favor of the prior user and registrant, the Board found confusion likely and it sustained both oppositions. It found it unnecessary to reach opposer's dilution claims [which in all probability would have failed for lack of proof of fame].

Counterclaims: The Board then took up applicant's Section 18 petitions to restrict five of UTEP's pleaded registrations (but not the registration for the word mark MINERS in class 25), by adding certain restrictions like "excluding college baseball" in two registrations, and "college imprinted" in one. The Board pointed out, however, that to be acceptable a proposed restriction under Section 18 must be "commercially significant."

"A restriction is 'commercially significant' if its entry would avoid a finding of likely confusion or if the registrant has set forth its goods in terms that overstate the range of goods or the trade channels in which those goods move, so that fairness demands that an appropriate restriction to the registration be entered."

The Board concluded that the restrictions proposed by applicant were not commercially significant. First, as to four of the registrations (the non-word mark registrations), the Board did not consider them in reaching its decision. Therefore, the proposed restrictions of those registrations would not have changed the result here, and therefore would not be commercially significant.

With regard to UTEP's class 16 word mark registration, applicant proposed to amend "printed programs for college sporting events and media guides" to "printed programs for college sporting events (excluding college baseball) and media guides." However, applicant provided not argument or analysis as to why this restriction would avoid a likelihood of confusion. Nor did fairness demand such a restriction.

It is undisputed that opposer sponsors several college sports teams, and we do not believe fairness demands, in such circumstances, that opposer's registration be restricted under section 18 to itemize certain, or all, of the sports for which it does not sponsor an intercollegiate team."

And so the Board denied the Section 18 counterclaims.

Read comments and post your comment here.

TTABlog note:  If you were to seek review of this decision, what route would you choose? The CAFC or the district court?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/17/2014   0 comments

Friday, March 14, 2014

Test Your TTAB Judge-Ability: Is the Initialism "ISCM" Merely Descriptive of These Monitoring Services?

Siemens filed an application to register the mark ISCM for business management services relating to the monitoring and analysis of the condition of electrical supply networks, but the USPTO refused registration on the ground of mere descriptiveness under Section 2(e)(1). The Examining Attorney maintained that ISCM is an acronym for "Integrated Supply Chain Management" which is the "coordinated management of the entire supply chain to improve efficiency and decrease costs." Siemens appealed. How do you think this came out? In re Siemens Aktiengesellschaft, Serial No. 79100971 (March 7, 2014) [not precedential].


To be merely descriptive of particular goods or services, an acronym must have a known meaning to relevant consumers, and that known meaning must be merely descriptive of those goods or services. Here, Siemens did not disagree that ISCM is an abbreviation for Integrated Supply Chain Management. Nor did Siemens dispute the meaning of that term.

Integrated supply chain management is the act of ensuring that your supplier provides the right items on schedule, built to the correct specifications, at the proper cost. This means that you, as the purchaser of the materials required to make your product, are the pivotal station within your supply chain.

Siemens services involve the monitoring of electric energy supply networks to ensure that the components are in good working order, not the coordination of the supply of goods or raw materials for the networks. "In other words, applicant's services do not involve insuring that suppliers provide the right goods on schedule, built to correct specifications, at the proper cost."

Therefore, the Board found that the initialism ISCM is not merely descriptive of the recited services and it reversed the refusal to register.

Read comments and post your comment here.

TTABlog note:  So how did you do?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/14/2014   1 comments

Thursday, March 13, 2014

Test Your TTAB Judge-Ability: Are PLATINUM SERIES and PLATINUM PAK Confusable for Supplements?

Examining Attorney Dominick J. Salemi refused registration of the mark PLATINUM SERIES for "dietary supplements" [SERIES disclaimed], finding the mark likely to cause confusion with eleven marks containing the word PLATINUM, registered by a single entity, for nutritional supplements. Ultimate Nutrition appealed, arguing that PLATINUM is a weak formative in light of numerous third-party webpages and dozens of registrations for PLATINUM-containing marks for similar goods and services, and further asserting that purchasers of orally-ingested products exercise care in their purchasing decisions. How do you think this came out? In re Ultimate Nutrition, Inc., Serial No. 85707822 (February 25, 2014) [not precedential].


The Examining Attorney referred to the eleven cited marks as a "family," but the Board pointed out that the "family of marks" doctrine is inapplicable in an ex parte context (since examining attorneys lack the resources to establish a family of marks). See In re Hitachi High-Technologies Corp., 109 USPQ2d 1769 (TTAB 2014). Therefore the Board chose to focus its analysis on what it saw to be the most relevant of the cited registrations, the one for PLATINUM PAK for nutritional supplements [PACK disclaimed].

As to the goods, the Board found them to be very similar because both provide vitamins, minerals, and other nutrients to food. Applicant did not argue that the goods are dissimilar.

There were no limitations on channels of trade or classes of customers in the involved application or cited registration, and so, given the relatedness of the goods, the Board presumed that they travel in the same, normal channels to the same consumers.

As to the third-party website uses of PLATINUM-containing marks, the Board found the evidence to be of limited value because it could not determine how many relevant customers have encountered these uses. The third-party registrations are not evidence of use of the marks shown therein, and furthermore they did not identify goods that were as closely related to those in the cited registration or challenged application. In short, the Board found insufficient support for the position that PLATINUM is a weak formative.

Turning to the marks, the Board noted that SERIES and PACK are disclaimed, and that both terms appear to be at best suggestive of the goods. The significance of the word PLATINUM is reinforced by its location as the first word in the marks. Moreover, although SERIES and PACK differ in appearance and sound, both suggest the way in which the goods are offered: in a series of pack of doses. The marks are thus more similar than dissimilar in appearance and convey a similar connotation: a series or pack of high quality supplements. The Board consequently found this du Pont factor to favor a finding of likely confusion.

Finally, the Board pooh-poohed applicant's sophistication argument, observing that even sophisticated consumers may not realize that applicant's goods do not emanate from the same source as registrant's goods. Even careful purchasers are not likely to distinguish these marks.

Balancing the relevant du Pont factors, and giving the prior registrant the benefit of any doubt, the Board found confusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog note:  So how did you do?

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/13/2014   3 comments

Wednesday, March 12, 2014

TTAB Affirms Section 2(e)(5) Functionality Refusal of Yellow Fan Winglet Design

Suffering from a bad case of over-reaching, Applicant Delta T applied to register the two-dimensional design shown below for "ventilating fans for commercial and industrial use," describing the mark as "a yellow triangular shape with two curved sides and rounded corners." However, Delta's specimen of use displayed the design in three-dimensions, corresponding to the shape of the winglet at the outer tip of the fan blade. The Board found that the proposed mark "is coextensive with and inseparable from applicant’s patented winglet design" and is de jure functional under Section 2(e)(5). Moreover, because the drawing of the mark did not match the specimen of use, the alternative refusal under Sections 1 and 45 was affirmed. In re Delta T Corporation, Serial No. 77839055 (March 7, 2014) [not precedential].


Section 2(e)(5) Functionality: Applying the Morton-Norwich factors to the applied-for design, the Board first noted that Delta owns a utility patent covering fan blades, which patent states that "[a]dding winglets to fan blades may improve the aerodynamics of the fan blades, and therefore increase efficiencies of a fan." Delta did not argue that its winglets are not covered by the patent. Instead, it asserted that it was not seeking protection of the three-dimensional shape of the winglet, but only the two-dimensional yellow triangular shape. [Note: Delta already owns a Supplemental Registration for the color  yellow as applied to winglets, so it was here trying to claim the shape as well - ed.]. The Board was not impressed.

The Board observed that the fact that a drawing of a mark is two-dimensional does not preclude the alleged mark from being functional. It agreed with Examining Attorney Richard F. White that the curved triangular design is exclusively located on the winglets of applicant's fans, and it is therefore essentially utilitarian. Allowing registration of this shape would improperly extend the time-limited protection afforded by the patent. This was strong evidence of functionality.

Moreover, Delta's advertising touted the utilitarian benefits of the winglet design: "Patented airfoil and winglet design set the world standard for maximum efficient airflow in large spaces." Again, this was strong evidence of functionality.

There was some evidence that other winglet shapes were in use, but the mere fact that other designs are available does not necessarily mean that applicant's design is not de jure functional.

The Board concluded that the first two factors outweighed the third, and ruled that the applied for design is barred from registration by Section 2(e)(5). Delta feebly argued that the design as a whole was not functional because the color yellow is not functional, but the Board pointed out that "the critical question is the degree of utility present in the overall design of the mark," and it concluded that the functional features outweighed the non-functional feature (the color yellow).


Disagreement Between Drawing and Specimen: The Board reiterated that the proposed mark, as shown in the specimen of use, is "coextensive with and inseparable from" the patented design. The consumer viewing one of the fans would see the design in three dimensions, not two.

Delta argued that the drawing is not in disagreement with the specimen; instead, "the geometric shape of the surface to which the mark is applied causes the mark itself to take the shape of said surface." Again, the Board was not impressed. Not only is the mark formed on the fan winglets, but "as formed [it] constitutes an important functional component of those goods."

Therefore the Board concluded that Delta had failed to provide a specimen showing the applied-for mark in use in commerce, and it affirmed the alternative refusal to register.

Read comments and post your comment here.

TTABlog note:  Seems pretty obvious that Delta was trying to make an end run around the expiration of the utility patent by seeking trademark rights in the winglet shape.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/12/2014   1 comments

Tuesday, March 11, 2014

TTABlog Flotsam and Jetsam: Issue No. 14

It's time for another edition of "Flotsam and Jetsam," wherein I provide timely tidbits to the TTABar. The last edition was a mere four and one-half years ago, but who's counting?



Judge Holtzman Retires: Judge Terry E. Holtzman retired from the Board In November 2013. She was appointed to the Board in 1999.

Judge Grendel Retires: Judge Charles M. Grendel retired from the Board as of earlier this year, after some 14 years as an Administrative Trademark Judge. His departure, by my count, brings the number of TTAB judges to twenty-one (21 or XXI).  [The current roster of TTAB judges may be found here.]

TTAB Seeks Applicants for "Deputy Chief Administrative Trademark Judge": The PTO is seeking candidates for the position of Deputy Chief Administrative Trademark Judge. The application period runs to April 2, 2014. Details here.

Erik Pelton's Report on Trademark Public Advisory Committee: Erik Pelton reports here on the latest quarterly TPAC meeting, held on February 28, 2014. As to our favorite tribunal, Chief Judge Gerard F. Rogers announced (1) that the 2014 revision of the TBMP will be out in June, and (2) that the TTAB is on target for meeting all of its 2014 goals. Also notable is the pending legislation in Congress to permit the registration of official insignia by state and local governmental entities, in a reaction to the District of Columbia and City of Houston decisions, TTABlogged here.

CAFC Affirms TTAB: DOCTORS MAKING HOUSECALLS Generic: Yesterday, the CAFC issued a Rule 36 affirmance in the appeal from a TTAB decision upholding the PTO's genericness refusal of DOCTORS MAKING HOUSECALLS for ... wait for it ... "providing on-site medical services to patients at their homes, apartments, senior communities, offices, or other designated locations." [TTABlogged here]. [When one appeals a WYHA? to the TTAB and then to the CAFC, that makes it a double WYHA? or WHYA?-squared. Now if the Supreme Court affirms ....]

Read comments and post your comment here.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/11/2014   3 comments

Monday, March 10, 2014

Precedential No. 8: Catalogs Lacked Necessary Ordering Information to Qualify as Trademark Specimen, Says TTAB

Once again visiting the "catalog as trademark specimen" issue, the Board affirmed a refusal to register the mark TSUBAKI: THE CHOICE FOR CHAIN for "industrial machine parts, namely, chains and sprockets" on the ground that Applicant Tsubaki failed to provide an acceptable specimen of use. Tsubaki submitted six catalogs in which potential purchasers were invited to call the company phone number to obtain information and place an order. That was not, however, sufficient information to qualify the catalogs as acceptable specimens of trademark use. In re U.S. Tsubaki, Inc., 109 USPQ2d 2002 (TTAB 2014) [precedential].



Trademark Rule 2.61(b) states that "[a] trademark specimen is a label, tag, or container for the goods, or a display associated with the goods." TMEP § 904.03(g) explains that a qualifying "display" will essentially comprise “point-of-sale material such as banners, shelf-talkers, window displays, menus, and similar devices.”

Tsubaki argued that its catalogs are acceptable as specimens because they satisfied the requirement set forth in TMEP §904.03(h) that they "offer to accept orders and provide instructions on how to place an order.” Examining Attorney Michele-Lynn Swain maintained that the catalogs do not contain the necessary ordering information and therefore are mere advertisements for the goods.

The determination of whether a specimen of use is a display associated with the goods or merely advertising is a question of fact: "whether the purported point-of-sale display provides the potential purchaser with the information normally associated with ordering products of that kind." In re Anpath Group, Inc., 95 USPQ2d 1377 (TTAB 2010) (flyer that provided website and/or a telephone number for contacting applicant’s sales representatives lacked sufficient information to be considered a display associated with its goods). Reviewing Tsubaki's specimens of use, the Board agreed with the Examining Attorney:

Applicant's catalogs do not have the characteristics that would make a catalog a point-of-sale display (e.g.. sales forms, ordering information, minimum quantities, cost, payment plans, shipping, etc.). After reviewing applicant’s catalogs, prospective customers are not yet at the point of purchase and would need to contact applicant to obtain additional information. It is only after obtaining such information, which is not provided on the specimens, that the purchaser would be in a position to make a purchasing decision.

The specimens simply do not contain adequate information for making a decision to purchase the goods and placing an order.... The mere listing of telephone numbers for corporate headquarters and a website URL does not turn what is otherwise an ordinary advertisement into a point-of-sale display or a “display used in association with the goods” and, thus, into a valid specimen showing technical trademark use.

Despite the assertions of Tsubaki's attorney, there was no evidence that Tsubaki's industrial chains were typically ordered by telephone following customer review of technical information in the catalogs and consultation with Tsubaki's employees. Compare In re Valenite Inc., 84 USPQ2d 1346, 1348 (TTAB 2007) (appellant submitted the declaration of its director of marketing who testified that appellant’s customers, after reviewing information a at Valenite's website, sufficient to make a selection, regularly contact the customer service department by telephone to confirm the correctness of the selection and place an order).

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

Text Copyright John L. Welch 2014.

posted by John L. Welch @ 3/10/2014   11 comments