What is the Likelihood of TTAB Affirmance of a Section 2(d) 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 2014. I counted 242 Section 2(d) refusals, of which 221 were affirmed and 21 reversed. That's an affirmance rate of nearly 91%. So let's say the odds are 9 out of 10 for affirmance. [Higher than last year's 84% but about the same as 2012.]
Only three of the decisions were precedential: The first was In re Hitachi High-Technologies Corp., 109 USPQ2d 1769 (TTAB 2014) [TTABlogged here], in which the Board upheld a refusal to register the mark OPTICROSS for "liquid chromatography apparatus and parts thereof," finding the mark likely to cause confusion with the registered mark OPTI for components of liquid chromatography systems. Although the Examining Attorney had withdrawn her initial reliance on a family of "OPTI" marks, the Board took the opportunity to point out that the "family of marks" doctrine is reserved for inter partes proceedings, because "establishing a 'family' of marks requires a detailed assessment of not just the registrations, but, more importantly, of how the 'family' is used in the marketplace."
The second precedential decision was In re Gina Davia, 110 USPQ2d 1810 (TTAB 2014) [TTABlogged here]. The Board affirmed a Section 2(d) refusal to register the mark shown immediately below, for "condiment, namely, pepper sauce" [PEPPER SAUCE disclaimed], in view of the registered mark CHANTICO for "agave sweetener."
The third was In re Covalinski, 113 USPQ2d 1166 (TTAB 2014) [TTABlogged here], wherein the Board reversed a refusal to register the mark shown below for athletic apparel, including shirts, hats, and caps. The USPTO had deemed the mark confusingly similar to the registered mark RACEGIRL for various clothing items, including shirts, hats, and caps. The Board found confusion unlikely because of the "crucial differences" in the marks, observing that the word portion of a word + design mark is not always the dominant portion.
Read comments and post your comment here.
Text Copyright John L. Welch 2015.