Tuesday, February 02, 2016

How Often Did the TTAB Affirm a Section 2(d) Refusal in 2015? a 2(e)(1) Mere Descriptiveness Refusal?

This weekend I went to the TTAB's FOIA page in an attempt to determine, or at least estimate, the percentage of Section 2(d) likelihood-of-confusion refusals and Section 2(e)(1) mere descriptiveness refusals that were affirmed/reversed by the Board during the calendar year 2015. The highly unscientific results are set out below. 

Section 2(d): I counted 223 Section 2(d) refusals, of which 188 were affirmed and 35 reversed. That's an affirmance rate of about 85%. [Down from a whopping 91% last year and more in line with the past few years].

Seven of the opinions were deemed precedential. The HUGHES FURNITURE, HOUSE BEER, MARAZUL, C.J. HANSON, and I AM refusals were affirmed. The TERRAIN and ALLEGIANCE STAFFING refusals were reversed.

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

Section 2(e)(1) mere descriptiveness: Of the 97 Section 2(e)(1) mere descriptiveness refusals, 84 were affirmed and 13 reversed, for an affirmance rate of approximately 86%. That is consistent with estimates that I and others have made in past years.

The only precedential opinion, in the SMART SERIES case, was affirmed.

Read comments and post your comment here.

Text Copyright John L. Welch 2013.


At 9:45 AM, Anonymous Anonymous said...

There were 39 reversal of 2(d) refusals by the TTAB in 2015

At 12:43 PM, Blogger John L. Welch said...

Depends on how and what you count. I would count a standard character and a design mark (two different marks) as one reversal, for example. Anyway, doesn't 39 instead of 35 doesn't move the needle much.


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