TTAB Test: Which One 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 that approach on these three recent appeals. Which one resulted in a reversal? [Answer in first comment.]
In re McCrane, Inc., Serial No. 85728534 (July 6, 2016) [not precedential]. [Section 2(d) refusal of HUMANX, in the form shown below, for exercise and fitness equipment, in view of the registered mark HUMAN X (in standard characters), for "athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms; boxing shorts; rash guards; tee shirts"].
In re Touratech AG, Serial No. 86288721 (July 6, 2016) [not precedential]. [Section 2(d) refusal the mark DriRide for motorcycle parts and accessories, arranging motorcycle travel tours, and motorcycle rentals, in view of the registered mark DRIRIDER for clothing for motorcyclists].
In re Summit Entertainment, LLC, Serial No. 77921988 (June 29, 2016) [not precedential]. [Section 2(d) refusal of ECLIPSE for, inter alia, all-purpose carrying bags, back packs, and messenger bags, "all relating to motion pictures and entertainment," in view of the registered mark ECLIPS & Design, shown below, for "trunks and travelling bags, namely, tote bags"].
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Text Copyright John L. Welch 2016.
posted by John L. Welch @ 7/14/2016
8 comments
8 Comments:
The third one was reversed.
That was way too easy. The first two are clear WYHAs
I hear you. There are so many WYHA?s and so few reversals.
The third case should define a new category of "What the Heck is Wrong With Some Examining Attorneys?" WTHIWWSEA (?) or maybe "Would Anyone NOT Appeal?" WANA?
Does anyone think the ECLIPSE mark would have gotten around the ECLIPZE mark that lapsed (and the refusal basis for which became moot)? Would Applicant's acknowledgement in the ID that the mark is a secondary source indicator be enough to get around the similar umbrella goods?
Why did the Examining Attorney not make the argument that a standard character mark could be presented in any font style, and therefore could be presented in the same design form as the registered mark, e.g. with both e's enclosed in a winged heart? The Applicant argues that the marks are "visually different" in part because the letter E is in a left italicized, lower case, light font, and the word CLIPS in block stylized lower case dark font, but registering "ECLIPSE" as a standard character mark assumes the possibility of the applicant using the same font selections. It would be very easy to present the word "ECLIPSE" in a form that would be easily confused with the registered mark.
I was a little surprised by In re Summit at first, given that the ECLIPSE registration should cover all representations of the word mark. But I think part of the TTAB's reasoning was that, given the stylization and design elements of ECLIPS, consumers were unlikely to give it the same connotation as the word "eclipse," which makes sense.
I agree with Chris. It's one thing to give a standard character mark wide latitude in its possible appearance (although not as far as adding a heart as one person stated) and another thing to decimate the essence of the meaning of the word by so doing. There's just no way to argue that E CLIPS is similar to ECLIPSE. I don't know what an e clip is but I know what an eclipse is.
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