TTAB Test: Which of these Three Section 2(d) Refusals Was Reversed?
I once heard a TTAB judge say 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, try your luck on these three appeals. Which one resulted in a reversal? [Answer in first comment.]
In re 10 Barrel Brewing LLC, Serial No. 86190248 (May 31, 2016) [not precedential]. [Refusal to register SWILL for beer in view of the registered mark SWELL SWILL for wines].
In re FreeStyle Fitness Academy, LLC, Serial No. 86490859 (May 31, 2016) [not precedential]. [Refusal to register FreeStyle Fitness Academy, in standard character form, for the service of training fitness instructors, in view of the registered mark shown below for conducting fitness training and training dance instructors].
In re Mudskipper Media LLC, Serial No. 86570258 (February 9, 2016) [not precedential]. [Refusal to register the mark shown below left, for "café services; catering services; restaurant services; restaurants" [AMERICAN CAFE disclaimed], in view of the registered mark shown below right, for "restaurant services" [HEROES, PIZZA, and SUBS disclaimed], and the registered mark HEROES PUB for "restaurant and bar services" [PUB DISCLAIMED].
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Text Copyright John L. Welch 2016.
posted by John L. Welch @ 6/02/2016
5 comments
5 Comments:
The second case was reversed. In the third, the refusal based on the HEROES PIZZA & SUBS design mark was reversed, but not the HEROES PUB refusal.
Applicant didn't even argue that beer and wine are not related!?! There is plenty of evidence that can be submitted to prove this. This was a major beer company, so I'm shocked to say the least.
I've argued the wine/beer dichotomy before. I don't think there are any winning arguments. What I don't understand, though, is if the USPTO takes the position that they are essentially the same goods (at least with respect to both containing alcohol, same channels of trade, generally same price-point) why are they in separate classes? Wine is ICL33 while beer is in ICL32.
Many attorneys have had success arguing that wine and beer are not related. It's all up to the evidence and the examining attorney's view on the matter (there is a clear "split" and clearly no mandate from on high as to how the examiners are to handle this).
We have a tool at TM TKO that instantly finds this sort of "unrelated goods" evidence - here's a smattering of the (pretty extensive) beer/wine coexistence: same mark, different owners. Beer marks come first, then wine.
SINGULARITY
Community Beer Works, LLC
Reg: 4877654
SINGULARITY
Reg: 4838176
Domaine Verdant LLC
EVE
Lonerider Brewing Company
Reg: 4914349
EVE
Reg: 4881336
K Vintners, L.L.C.
LEGENDS
Legend Beverage, Inc.
Reg: 3840825
LEGENDS
Reg: 3616067
Vintage Wine Estates, Inc.
SPRINGBOARD
New Belgium Brewing Company, Inc.
Reg: 3416157
SPRINGBOARD
Reg: 4708249
Anderson & Middleton Company
There's way more - and plenty of case law to the contrary, too. Ensuring consistent outcomes isn't always the USPTO's strong suit!
Matt
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