TTAB Posts September 2016 Hearing Schedule

The Trademark Trial and Appeal Board has scheduled five (5) oral hearings for the month of September 2016. Except for the first-listed hearing, the hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. Briefs and other papers for these cases may be found at TTABVUE via the links provided.



September 12, 2016 - 11 A M: Luxco, Inc. v Consejo Regulador del Tequila, A.C., Opposition No. 91190827 [Opposition to registration of TEQUILA as a certification mark for "distilled spirits, namely, spirits distilled from the blue tequilana Weber variety of agave plant," on the ground that the mark fails to serve as an exclusive indicator of geographic origin]. [Hearing to be held at the IPO Annual Meeting in New York City].

September 13, 2016 - 10 AM: In re NTVB Media, Serial No. 86174087 [Section 2(e)(1) mere descriptiveness refusal of TV WEEKLY, in the stylized form shown below, for "Publications, namely, printed magazines, newspaper inserts, television guides, featuring information pertaining to media, television, movies, stars, trivia, gossip,media programming guides with information relating to video and audio content in television, movies,the Internet, web podcasts and radio programming, games, and puzzles” and the services “Online publications, namely, online articles, guides, magazines relating to media, television, movies, stars,trivia, games, puzzles, gossip, media programming guides with information relating to video and audio content in television, the Internet, web podcasts and radio programming"].

September 14, 2016 - 2:30 PM: In re The Line and Dot LLC, Serial No. 86170528 [Section 2(d) refusal of LUMIÈRE for "women's clothing, namely blouses tops dresses, pants and sweaters," in view of the registered mark LUMIERE PLACE for "Blouses; Coats; Foul weather gear; Gloves; Headwear; Jackets; Jogging suits; Pants; Polo shirts; Robes; Shirts; Shorts; Socks; Sweat pants; Sweat shirts; Sweaters; Swimwear; T-shirts; Tank tops; Vests; Wristbands"].

September 20, 2016 - 2 PM: In re Rieker Instrument Company, Inc., Serial No. 86197455 [Section 2(e)(1) mere descriptiveness refusal of CARS for "Computer software used for capturing road data and determining safe curve speeds for automobiles; Computer hardware used for capturing telemetry and road data” and “Software as a service featuring software for capturing road data and determining safe curve speeds for automobiles"].

September 21, 2016 - 2 PM: In re Pure Risk Management, LLC, Serial No. 86913636 [Section 2(d) refusal of PURE SITUATION ROOM for "Insurance services, namely, the provision of underwriting and claims management in the field of property-casualty insurance; financial services, namely, financial oversight in the nature of risk management," in view of the registered mark AON SITUATION ROOM for "Providing information in the field of insurance, insurance placement, and insurance premiums"].

Read comments and post your comment here.

TTABlog note: Any predictions?

Text Copyright John L. Welch 2016.

Finding Acquired Distinctiveness, TTAB Reverses 2(e)(1) Refusal of WATERCRAFT SUPERSTORE

The Board reversed a Section 2(e)(1) mere descriptiveness refusal of WATERCRAFT SUPERSTORE for "Online retail store services featuring personal watercraft parts and accessories" [SUPERSTORE disclaimed]. Applicant convinced the Board that the mark has acquired distinctiveness under Section 2(f) by pointing to many website postings recognizing WATERCRAFT SUPERSTORE as a source indicator for applicant's services. In re Watercraft Superstore, Inc., Serial No. 86369831 (August 26, 2016) [not precedenital].

Applicant sought registration under Section 2(f), thereby conceding that its mark is not inherently distinctive. Applicant bore the burden of persuasion on the issue of acquired distinctiveness. The Board noted, once again, that more evidence is required when a mark is highly descriptive, and it found applicant's mark to be "very highly descriptive."

Applicant submitted evidence showing use of its mark since 2008, orders increasing from 15,000 in 2009 to 26,000 in 2014, advertising expenditures in the $200k to 300k range per annum, distribution of 477,376 copies of its catalogues over a four-year period, and about 100k visitors to its website from 2009 to 2014. Applicant also attended 12 trade shows.

The Examining Attorney pointed out that applicant did not offer any context for this data in relation to others who provide similar services. The Board agreed that such contextual information would "improve the nature of the evidence." But it found that applicant "has meaningful, bona fide and ongoing operations, even though it would likely be characterized as a small business." The Board recognized that the sales and advertising figures, even if greater, would not be direct evidence of source recognition by consumers. However, "Applicant has taken a different approach to demonstrating actual market recognition."

Since 2009, Applicant has operated an online forum for the discussion of personal watercraft, called PWC Today. Applicant has made of record many pages of postings by users of that forum, many of which clearly recognize WATERCRAFT SUPERSTORE as the source indicator for Applicant’s online retail store. According to Applicant’s tabulation, users from 21 States have shown such recognition.

The record included more than 50 postings in which "it is clear from the context that the consumer recognizes WATERCRAFT SUPERSTORE as Applicant's source indicator."

The Examining Attorney contended that the online forum appears on applicant's website, "so consumers who use the forum know on what site they are posting." The Board, however, noted that the forum is separate from applicant's retail website and that nothing clearly indicates that the forum is a website of applicant, "although some of the users of the website acknowledge that Applicant 'sponsors' the site or is 'tied to' the website."

Applicant has demonstrated actual market recognition of its mark as a source-indicator with evidence of spontaneous comments of relevant customers and potential customers. We note that the large amount of public commentary offered by Applicant appears to be devoid of examples suggesting that customers would spontaneously refer to the stores of others as “watercraft superstores.” The evidence submitted by the Examining Attorney does not show such uses by the relevant public; nor does it show third-party merchants using “watercraft superstore” to identify or describe their services.

And so the Board reversed the refusal.

Read comments and post your comment here.

TTABlog comment: Hmmm. Whatever 2(f)loats your boat.

Text Copyright John L. Welch 2016.

Precedential No. 23: TTAB Affirms Refusal Of "pitchingsmart" Due To Faulty I.D. And Specimen

Applicant Jimmy Moore LLC struck out in its attempt to register the mark pitchingsmart (in standard character form) for "entertainment in the nature of baseball games" in Class 41. Recognizing that this original recitation of services was incorrect, applicant immediately tried to amend its identification to a pitching training system, and then to educational services, but Examining Attorney Tasneem Hussain rejected the amended identifications as beyond the scope of the original, and concluded that applicant's specimens of use did not show the mark in use with the original recited services. In re Jimmy Moore LLC, 119 USPQ2d 1764 (TTAB 2016) [precedential].

Applicant's headaches stemmed from the original sin of misidentifying its services. The error was noticed immediately and applicant filed a "voluntary amendment" seeking to amend the recitation of services to "baseball and softball training system for pitchers to improve their pitching skills for accurate and intelligent placement of baseball and softball in a strike zone." After that proposed recitation was rejected as beyond the scope of the original, applicant amended to "educational services, namely, providing seminars for baseball and softball pitching." The Examining Attorney rejected that recitation for the same reason, and maintained the requirement that applicant submit an acceptable specimen of use for the original services. Applicant petitioned the Director of the USPTO, who agreed with the Examining Attorney that the amended recitations were unacceptable, observing that:

an applicant who selects the wrong identification of services in the initial application must file a new application if the identification cannot be amended within the scope of the original identification. Therefore, the examining attorney’s action in changing the record back to the original identification was proper.

The Examining Attorney then made final the refusal to accept the amended recitation of services and the requirement for an acceptable specimen.

The Board declined to revisit the Director's decision that applicant did not have an absolute right to amend its identification if the amendment was filed before commencement of examination. Instead, the issues on appeal were whether either of the proposed amendments were acceptable and whether the applicant's specimens showed use of its mark with its identified services.

Identification of Services: Trademark Rule 2.71(a) provides that an applicant may amend its identification of goods or services to clarify or limit, but not to broaden. Applicant pointed to the language of the preamble to the rule, which refers to amendment "during the course of examination," arguing that examination had not begun and so the rule did not apply here. The Board was unmoved. First, it pointed out that it "cannot revisit the Director's decision on this point." Second, under applicant's interpretation, "there would have been no provision under the rules to file its preliminary amendment."

Applicant also contended that the amendments did not exceed the scope of the original identification, but its convoluted arguments were wholly unpersuasive. The phrase "entertainment in the nature of baseball games" is clear - the service of putting on a baseball game for the entertainment of spectators - and indeed it is one of the acceptable definitions set forth in the Trademark ID Manual. Those services do not encompass a training system for pitchers or providing educational seminars regarding pitching.

Specimens of Use: Applicant did not contend that its specimens of use supported the original identification of services. In fact, it stated that it "is not in the business of 'offering baseball games,' so applicant cannot deliver such specimens." Therefore, the Board affirmed the requirement for acceptable specimens.

Read comments and post your comment here.

TTABlog comment: The Board noted that applicant did not invoke Rule 2.146(a)(5) to seek a waiver of Rule 2.71(a). I would have immediately filed a new application once the error was discovered, wouldn't you? I probably would also have tried to amend the original application.

Text Copyright John L. Welch 2016.

Precedential No. 22: Appellants Fail To Address PTO Refusals, TTAB Affirms

The Board affirmed the USPTO's refusal to register the mark HEMP HOME HEALTH for "home health care services" because Applicants, in their appeal, failed to address the three grounds of refusal: mere descriptiveness or deceptive misdescriptiveness under Section 2(e)(1) and failure to respond to a Rule 2.61(b) request for information. In re Heather Harley and Carolyn Jones, 119 USPQ2d 1755 (TTAB 2016) [precedential].

During prosecution, Examining Attorney Jeffrey J. Look issued the Section 2(e)(1) refusals and requested information under Rule 2.61: concerning the significance of HEMP as applied to the services, whether the services comply with the Controlled Substances Act ("CSA"), and whether applicants will be using hemp-based products in their services. He twice issued advisories regarding a possible refusal based on the ground that the use of the applied-for mark would not be lawful. Applicants complied in part, but not fully, with the Rule 2.61 request, The Examining Attorney made the three refusals final.

In their appeal, applicants framed the issue as follows: "Can an Applicant's lawful use of a trademark be denied for use in connection with legal goods because the Applicant also sells substances that may be illegal under the CSA?"[Actually, a refusal of registration has nothing to do with whether applicants may use the mark - ed.]. Applicants did not address the three grounds for refusal that were issued by the Examining Attorney.

The Board observed that applicant's arguments "suggest that they are attempting to appeal a mere advisory statement made in the Examining Attorney's Office Actions." But an advisory action is not a refusal to register. The TTAB has jurisdiction only over "a final decision of the examiner in charge of the registration of marks." See Lanham Act Section 20.

The filing of a notice of appeal has the effect of appealing all refusals or requirements made final. Applicants' failure to address these refusals is a basis for affirming the refusal of registration on all grounds.

Therefore, the Board affirmed the refusals to register.

Read comments and post your comment here.

TTABlog comment: Gee, I wonder who applicants' attorney was?

Text Copyright John L. Welch 2016.

TTAB Test: Is "PRO." (Stylized) Merely Descriptive of Architectural Services?

The USPTO refused registration of the mark PRO. in the form shown below, finding it to be merely descriptive of "consulting services in the field of architectural design." Applicant Pic Pro appealed, contending that the stylization of the mark renders it inherently distinctive. How do you think this came out? In re Pico Pro Inc., Serial No. 86672373 (August 23, 2016) [not precedential].

Examining Attorney Seth A. Rappaport submitted dictionary definitions of the word "pro": a professional, especially in sports; an expert in a field of endeavor. The evidence also showed that "pro" is an abbreviation for "professional": having or showing great skill; expert; a person following a profession, especially a learned profession. The evidence also showed that it is not uncommon for entities to use the term "professional" to describe their architectural design services.

The Board concluded that applicant's mark "immediately conveys to the consumer that Applicant offers professional consulting services in the field of architectural design, and thus the mark is merely descriptive." The addition of a period makes no difference in the consumer perception of the mark.

Applicant maintained that the the stylization of the mark renders it inherently distinctive, pointing to "two tones, a specific font, and a large ball in distinct shading in lieu of a typically sized period of this font and size."

The Board noted that descriptive words presented in a distinctive design may be registrable as a whole, but with disclaimer of the descriptive wording. The question is whether the stylization creates "a separate and inherently distinctive commercial impression apart from the word itself." The Board acknowledged that this determination is a subjective one.

The Board found that neither the very plain presentation of the mark nor the addition of a period in the form of a "large ball" suffice to create a separate and inherently distinctive impression apart from the word "pro." In short, the appearance of the mark is "relatively ordinary."

The Board noted that the two marks shown below were found to be insufficiently stylized to be considered inherently distinctive, but it also pointed out that each case must be decided on its own merits.

The Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: How did you do?

Text Copyright John L. Welch 2016.

Double WYHA? RENTED.COM Merely Descriptive and Confusable with RENT.COM for Real Estate Services

The USPTO refused registration of the mark RENTED.COM for "Computer services, namely, providing search platforms to allow users to request content from and receive content to a computer or mobile device in relation to real estate," finding the mark both merely descriptive of the services under Section 2(e)(1) and likely to cause confusion with the registered mark RENT.COM, in standard character and design form, for providing online real estate information and providing a website for promotion of rental properties." The Board affirmed the refusals. Would You Have Appealed? In re VacationFutures Inc., Serial No. 86634983 (August 22, 2016) [not precedential].

Mere Descriptiveness: Applicant VacationFutures did not address the Section 2(e)(1) refusal in its appeal brief, but the Board reviewed the refusal anyway. Internet evidence submitted by Examining Attorney Seth A. Rappaport showed, not surprisingly, that the terms "rent," "rental" or "rented" are commonly used as descriptors in connection with services identical or similar to Applicant’s services. Of course, ".com" has no source-identifying significance. Only in exceptional circumstances does the addition of ".com" to an unregistrable term yield a registrable result.

Here, no such exceptional circumstances exist. The “RENTED” portion of the applied-for mark is unregistrable by itself, and the addition of the “.COM” gTLD does not create a witty double entendre or add any other significance capable of identifying source or acquiring distinctiveness.

And so the Board affirmed the mere descriptiveness refusal.

Likelihood of Confusion: The Board found the applied-for mark to be "highly similar to Registrant's mark or to the dominant portion of Registrant's marks, with respect to sound, appearance and commercial impression."

Applicant argued that the cited marks are weak, noting that RENT.COM is registered on the Supplemental Register. The Board, however, pointed out that "marks deemed 'weak' or merely descriptive are still entitled to protection against the registration by a subsequent user of a similar mark for closely related goods and/or services." That applies to marks registered not only on the Principal Register, but those on the Supplemental Register as well.

Evidence of third-party use demonstrated that "the same entity commonly markets and provides the relevant services under the same mark, and that the [involved] services are sold or provided through the same trade channels and to the same classes of consumers in the same fields of use." The Board noted for the umpteenth time that when the marks at issue are highly similar, a lesser degree of similarity between the involved goods or services is necessary to support a finding of likely confusion.

The Board therefore found confusion likely and it affirmed the Section 2(d) refusal.

Read comments and post your comment here.

TTABlog comment: Well, would you have?

Text Copyright John L. Welch 2016.

TTAB Test: Which of These Three Section 2(d) Refusals Was Reversed?

People are saying that one can predict the outcome of a Section 2(d) case about 95 percent of the time just by looking at the marks and the goods/services. In one of these three recent appeals the Board reversed a likelihood of confusion refusal. Let's see how you do in figuring out which one it was. [Answer will be found in first comment].

In re Folino Estate, LLC, Serial No. 86356824 (August 19, 2016) [not precedential]. [Refusal of the mark FOLINO ESTATE & Design (below left) for wine, bar and restaurant services, and catering services, in view of the registered mark FOLIN CELLARS & Design (below right) for wine].

In re Tax Refund Services, Inc., Serial No. 86670858 (August 18, 2016) [not precedential]. [Refusal to register the mark shown below left for "tax filing services," in view of the registered mark TRS in standard character and design form (below right) for tax advisory services.

In re Mannatech, Inc., Serial No. 86447383 (August 17, 2016) [not precedential]. Refusal of the mark NUTRIVERUS & Design (below left) for "dietary and nutritional supplements sold through a multi-level marketing program," in view of the registered mark NU VERUS & Design (below right) for "liquid nutritional supplement; nutritional supplements; vitamin and mineral supplements].

Read comments and post your comment here.

TTABlog comment: How did you do?

Text Copyright John L. Welch 2016.

TTAB Dismisses Opposition, Rejecting Opposer's Improper Declaration Evidence

The Board granted applicant's Rule 2.132 motion for involuntary dismissal in this opposition to registration of the mark SHENANDOAH VALLEY CAMPGROUND for "providing campground facilities." Opposer alleged that the mark is merely descriptive under Section 2(e)(1) and primarily geographically descriptive under Section 2(e)(2). During its testimony period, however, opposer submitted only a declaration of its manager, along with one exhibit. Shenandoah Valley Campgrounds, LLC v. Falling Waters, Inc., Opposition No. 91221846 (August 17, 2016) [not precedential].

Rule 2.132(a) provides for the dismissal of an opposition on the ground of failure to prosecute if plaintiff's testimony period has expired and it has not taken testimony or offered any other evidence.

Testimony may be submitted by way of affidavit or declaration only upon agreement of the parties. Likewise, documents attached to a declaration or affidavit may be accepted into evidence only if the parties have so agreed. Here there was no such agreement.

Opposer feebly argued that the declaration was "impeachment evidence," but the Board observed that the declaration "was intended to introduce witness statements and evidence and is therefore, testimony." [Impeach what? Applicant hadn't testified yet? - ed.].

Because there was no agreement between the parties to allow testimony by way of declaration, Opposer's declaration and accompanying exhibit were improper and inadmissible.

The Board therefore granted applicant's motion to strike the declaration and exhibit. Since Opposer did not submit any admissible evidence or testimony in support of its asserted claims, and since applicant had not made any admissions in its answer (except as to standing), the Board granted the motion for involuntary dismissal.

Read comments and post your comment here.

TTABlog comment: This is a judgment on the merits, and so a petition for cancellation would be barred by claim preclusion.

Text Copyright John L. Welch 2016.

TTAB Test: Three Mere Descriptiveness Refusals For Your Perusal

By my estimation, somewhere around 85% of all Section 2(e)(1) mere descriptiveness refusals that reach the TTAB are affirmed on appeal. Well, here are three appeals that were decided during the past week. How do you think they came out? [Answers in first comment]. Do you see any WYHA?'s here?



In re Currency Cases LLC, Serial No. 86391147 (August 12, 2016) [not precedential]. [Refusal of CURRENCY CASES for "Storage apparatus that attaches to mobile device with adhesive"].

In re Classic Capital, Inc., Serial No. 86334513 (March 21, 2013) [not precedential]. [Refusal of CLASSIC CAR CAPITAL, for "consumer lending and financing services for classic, vintage and historical cars"].

In re K & G Concepts LLC., Serial No. 85940179 (August 15, 2016) [not precedential]. [Refusal of SMOOTH WRAP for "cigarillos; cigars; flavored tobacco; hand-rolling tobacco; leaf tobacco; roll your own tobacco; tobacco, cigars and cigarettes" [WRAP disclaimed].

Read comments and post your comment here.

TTABlog comment: How did you do?

Text Copyright John L. Welch 2016.

Finding Institutional Chicken Related to Frozen Fish, TTAB Affirms RED LABEL 2(d) Refusal

The Board affirmed this Section 2(d) refusal to register the mark RED LABEL for "chicken for sale to foodservice institutions," finding it likely to cause confusion with the identical mark registered for "frozen fish and seafood." Applicant Tyson Foods argued that its customers are sophisticated and would distinguish between the source of goods distributed under a mark from the source of goods manufactured or produced under a mark. The Board was not impressed. In re Tyson Foods, Inc., Serial No. 86533628 (August 9, 2016) [not precedential].

Of course, the identity of the marks weighed heavily in favor of a finding of likely confusion: when the marks are identical, a lesser degree of similarity between the involved goods is needed to support a Section 2(d) bar to registration.

There could be little dispute that the goods are similar in nature, since chicken, fish, and seafood may be used interchangeably as appetizers or entrees, or in salads and sandwiches. [Really? I think they taste quite different - ed.]. Tyson, however, focused on the fact that its goods are not directed to retail consumers but to foodservice institutions, and thus involve purchasers more sophisticated than the general public.

Because applicant Tyson limited its identified class of purchasers, the only overlap in purchasers is foodservice institutions. Tyson argued that foodservice purchasers are sophisticated and exercise a high degree of care when purchasing goods. The Board agreed that "it stands to reason that institutional investors will exercise greater care in making their purchases than the general purchasing public."

Examining Attorney Brittney L. Cogan provided excerpts from various commercial websites offering chicken and fish or seafood under the same mark to foodservice institutions. She also submitted third-party registrations covering all three products sold to such institutions. Tyson, however, asserted that although these products may be distributed by the same company, sophisticated foodservice buyers "are not likely to think that such goods are manufactured or produced by the same company even if the goods are identified by the same mark."

Tyson conceded that there may be a few exceptions - i.e., entities that both manufacture or produce, and distribute, poultry and seafood to food service institutions. Moreover, it conceded that foodservice buyers "buy directly from manufacturers or wholesale distributors."

The Board concluded that some sources distribute all of these food products under the same brand, while others both produce and distribute food products. "The cited third-party evidence serves to suggest that the identified goods are of a type that emanate from a single source."

Finally, the Board observed once again that even sophisticated buyers are not immune from source confusion, especially when the marks, "as used on their identified goods, so resemble one another as to be likely to cause confusion ...." [That begs the question, doesn't it? - ed.].

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: If a distributor called Joe Blow's offered to deliver chicken on one day, and the next day someone offered to sell directly seafood under the Joe Blow's mark, I would think the seafood producer and the chicken distributor service were related, wouldn't you? I can see why Tyson got knocked out.

Text Copyright John L. Welch 2016.

TTAB Test: Are These Ice Cube Marks Confusable for Soft Drinks?

The USPTO refused registration of the mark shown below left, for "flavored bottle water, flavored enhanced water, flavored water, purified bottled drinking water, bottled artesian water, drinking water with vitamins, distilled drinking water," finding the mark likely to cause confusion with the registered mark shown below right, for "soft drinks." Both marks depict an ice cube and fruit. Based on dictionary definitions of "soft drink," the Board concluded that the goods are in part identical. But what about the marks? How do you think this came out? In re Juice of New York, Serial No. 85908633 (August 12, 2016) [not precedential].

The dictionary evidence defined "soft drink" as "a beverage that is not alcoholic or intoxicating and is usually carbonated, as root beer or ginger ale." According to the Board, flavored waters are encompassed within "soft drinks." [Are applicant's waters carbonated? - ed.].

As to the marks, the Board found them to be similar in appearance "in a number of ways." Both marks represent an ice cube juxtaposed with a form of fruit. Moreover, "the numerous circular grapes in Applicant's mark resemble the many round lobes of the berry in Registrant's mark." The registered mark has no color claim, and so it might be used in colors that resemble those of applicant's mark. Of course, the presence of the wording JUICE INC. is a point of difference.

Registrant's mark has no sound, whereas the sound of JUICE INC. is a point of difference.

As to meaning, the unusual idea of a combination of fruit with an ice cube in both marks constitutes a "substantial degree of similarity in meaning."

The concept of juice is expressed literally in Applicant’s mark, and not in the cited mark. However, we view this as a very weak point of distinction in meaning between the two marks, inasmuch as both marks are for use in connection with goods that may be flavored with juice; and because the idea of juice from fruit is at least suggested by the representation of fruit in Registrant’s mark.

The Board found that, although there are a number of differences in the marks, they are outweighed by the "surprising similarity inherent in the unusual juxtaposition of an item of fruit with a cube of ice." The Board concluded that "overall, Applicant's mark creates the commercial impression of being a rough or rudimentary depiction or imitation of Registrant's more realistically rendered mark."

Applicant pointed out that it owns the copyright in its mark, but the Board pointed out that ownership of a graphic design is legally separate from the right to register that design as a trademark.

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: How did you do? I would have reversed.

Text Copyright John L. Welch 2016.

TTAB Test: Is "AMERICAN BARRISTER" Descriptive of Legal Services?

The USPTO refused to register the mark AMERICAN BARRISTER for legal services, deeming the mark to be merely descriptive under Section 2(e)(1) and primarily geographically descriptive under Section 2(e)(2). Applicant Robert J. Olejar's specimens of use indicated that he is both a British barrister and an American attorney at law. How do you think this came out? In re Robert J. Olejar, Serial No. 86302887 (August 11, 2016) [not precedential].

The Board first observed that refusals for mere descriptiveness and geographical descriptiveness should preferably be made in the alternative. The Board proceeded to analyze the two refusals as if made in the alternative.

Mere Descriptiveness: The definitions of record indicated that "barrister" is "a lawyer in England or Wales who is allowed to speak in the higher law courts." The Board found no evidence that "barrister" has a descriptive meaning in association with legal services rendered in the United States.

Because there is no evidence that legal services are rendered by “barristers” in the United States, we find that the phrase AMERICAN BARRISTER, considered as a whole, presents an incongruity that renders the mark suggestive. At least some imagination, thought, or perception is required to deduce what service characteristics the term indicates: that Applicant is an American lawyer offering legal services in the United States who also is qualified as a barrister in Great Britain.

Geographic Descriptiveness: The Board noted that marks incorporating the term "American" present "a special challenge" under Section 2(e)(2). TMEP Section 1210.02(b)(iv) points out that there is no simple or mechanical rule in dealing with these marks: "The introduction of a nuance, even a subtle one, may remove a mark from the primarily geographically descriptive category."

According to the Board:

If the term is used in a way that primarily denotes the United States as the origin of the goods or services, then it is primarily geographically descriptive. [E.g., MONOGRAMS AMERICA for embroidery stores.] *** Conversely, if a composite mark does not primarily convey geographically significance overall, or if AMERICA or AMERICAN is  used in a nebulous or suggestive manner, then is not primarily geographically descriptive. [E.g., THE AMERICAN GIRL for shoes].

The Board concluded that the word AMERICAN in the applied-for mark will be perceived as primarily referring to a personal characteristic rather than geographical location. Considering the incongruity of the mark, the Board was not persuaded that consumers would made an association between the services and the place named.

And so the Board reversed both refusals.

Read comments and post your comment here.

TTABlog comment: How did you do? I expected the mere descriptiveness refusal to be upheld. Applicant's website is here. It seems to me that the Board considered the mark in the abstract, rather than in the context of Applicant's actual services. Compare the recent HERBAL ACCESS marijuana case.

Text Copyright John L. Welch 2016.

TTAB Test: Is "GUINEA" Merely Descriptive of Collectible Coins?

The USPTO refused to register the mark GUINEA for, inter alia, collectible coins, deeming the mark merely descriptive under Section 2(e)(1). Applicant East India pointed out that a "guinea" is a  gold coin issued in England from 1663 to 1813, and it contended that "guinea" is an obscure foreign term. Examining Attorney Maria-Victoria Suarez pointed out that one of applicant's products is a replica of the historic guinea. How do you think this came out? In re The East India Company Holdings Pte. Ltd., Serial No. 85505335 (August 10, 2016) [not precedential].

Applicant maintained that the guinea coinage was never circulated in the United States, and that the Examining Attorney relied mainly on foreign websites to explain the meaning of the term "guinea." The Board was not impressed, particularly because the relevant American consumers are coin collectors, not the general public.

Moreover, the Examining Attorney established that:

[e]ven after the coin ceased to circulate, the name guinea was long used to indicate the amount of 21 shillings (£1.05 in decimalised currency). The guinea had an aristocratic overtone; professional fees and payment for land, horses, art, bespoke tailoring, furniture and other luxury items were often quoted in guineas until a couple of years after decimalisation in 1971. It was similarly used in Australia until that country went to decimal currency in 1966.

Applicant's website offers a "2015 One Guinea Gold Proof Coin," and states that "the Guinea is one of the world's most famous coins." The Board observed that applicant's website alone is sufficient to establish that the term "guinea" immediately conveys to coin collectors that the product being offered is a replica of a guinea coin.

The Board brushed aside applicant's claim of ownership of an EU registration, which served as the basis for the U.S. filing, pointing out that once an application is filed in the USA it must meet the eligibility requirements for registration.

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: Was this a WYHA? I think so.

By the way, as I recall, in Trollope's Palliser novels, Plantagenet Palliser was focused on the issue of the decimalization of British coins.

Text Copyright John L. Welch 2016.

TTAB Test: Is "TOON KICKER" Merely Descriptive of Pontoon Motor Mounts?

The USPTO issued a Section 2(e)(1) refusal of the mark TOON KICKER, finding it to be merely descriptive of "outboard motor mounts, namely, brackets specifically design for connection to pontoon boats for mounting of secondary outboard motors." The Examining Attorney pointed to several uses of "toon" referring to a "pontoon" boat, and references to "kicker" as a small outboard motor. Applicant Lermayer submitted third-party registrations for marks containing the word "toon" that were issued without a disclaimer or a Section 2(f) claim. How do you think this came out? In Lermayer Outdoors, Inc., Serial No. 86128066 (August 3, 2016) [not precedential].

The Board noted that except for only one reference in a blog, the Examining Attorney's uses of "toon" were part of various trademarks. Use of a term in a trademark does not prove that the term in merely descriptive. It may show that the term has significance within an industry, and that significance may be a suggestive one. There was no dictionary evidence that "toon" is an abbreviation of "pontoon." Moreover, the term appears in several registered marks, without disclaimer.

Clearly TOON is derived from “pontoon”, but these third parties might well have chosen to use TOON in their trademarks because it is suggestive of pontoon, not because it is the equivalent of pontoon. The only evidence we have of any non-trademark usage of “toon” is a single blogpost, but that is simply not sufficient for us to say that “toon” is an alternative term for “pontoon” or is an accepted abbreviation for that word.

The Board concluded that the USPTO had failed to carry its burden to show that TOON KICKER is merely descriptive. Although KICKER has a recognized meaning as an auxiliary motor, that descriptive meaning is subsumed when used in the mark TOON KICKER.

Because of the odd phraseology, a consumer seeing this mark for brackets designed to mount secondary outboard motors to pontoon boats would have a mental “hiccup” to understand the purpose of the goods. *** The mental steps a consumer would have to go through to transpose TOON KICKER brackets into “brackets for kickers used on pontoons” is enough to put TOON KICKER on the suggestive side of the “fine line” between descriptive and suggestive marks.

And so the Board reversed the refusal.

Read comments and post your comment here.

TTABlog comment: What if the goods were outboard motors rather than mounts? Would that make a difference on the descriptiveness issue?

Text Copyright John L. Welch 2016.

TTAB Test: Can the TTAB Order the Parties to Mediate?

In this Section 2(d) cancellation proceeding, Respondent Cooper moved to compel the parties to mediate. The Board denied Cooper's motion, pointing out that, although the Board encourages settlement, the Board does not compel parties to mediate. Cooper then petitioned the Director seeking reversal of the Board's denial. How do you think this came out? Rhythm Holding Limited v. Raymond W. Cooper, Cancellation No. 92060118 (August 9, 2016).

Cooper contended that the Board "adopted a per se rule" that it does not compel mediation, and therefore abused its discretion because the parties had all but settled the matter, with the exception of the monetary amount to be received by Cooper. Plaintiff Rhythm observed that the parties once discussed settlement, including an offer and counter offer which were rejected, but there was no outstanding proposal.

Cooper maintained that the Board has the authority to compel mediation under Fed. R. Civ. P. 16, which addresses pretrial conferences, scheduling and management, and which is generally applicable to Board proceedings pursuant to Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a).

The Director, however, found Cooper's s reliance on Rule 16 to be misplaced. Rule 16 does not expressly require compulsory mediation, though the provisions permit flexibility to facilitate settlement.

The Board does not require settlement, that the parties engage in settlement discussions or compel mediation. Rather, the Board encourages settlement, and several aspects of Board practice and procedure, including its discovery practice and its usual willingness to suspend proceedings for reasonable times while parties negotiate for settlement, serve to facilitate the resolution of cases by agreement. TBMP § 605.01. Were the parties mutually to agree to enter into mediation, the Board similarly would facilitate their endeavors.

It is clear that no Board rule exists requiring mediation be compelled; that, as acknowledged by [Cooper], the Board has not compelled mediation as part of its practice; and the federal rule relied upon by [Cooper] does not require that mediation be compelled. Thus, the Board did not abuse its discretion or commit clear error in denying [Cooper]’s motion to compel mediation.

Read comments and post your comment here.

TTABlog comment: The petition to the Director was filed on April 27, 2015 (not 2016, as stated by the Director) and decided in August 2016. Does this give you any ideas as to how to de-rail an inter partes proceeding for months and months?

Cooper's reference to Petitioner as a "trademark troll" drew a rebuke from the Director, who noted that "[a] party making unsubstantiated accusations runs the risk of being found to have acted improperly. Fed. R. Civ. P. 11(b)."

Still to be decided is Cooper's motion to compel telephonic communications between the parties. Will that one go to the Director as well?

Text Copyright John L. Welch 2016.

TTAB Finds "THE CORPORATE LAW GROUP" Generic for ... Guess What?

The TTAB squelched Paul D. Marotta's attempt to register the designation THE CORPORATE LAW GROUP for various legal services, on the ground of genericness. For the sake of completeness, the Board also considered and rejected Marotta's claim that the term was registrable under Section 2(f). In re Marotta, Serial No. 86087067 (August 6, 2016) [not precedential].

Genericness: The Board agreed with Applicant Marotta that the genus of services is "legal services." Examining Attorney Jonathan R. Falk urged that the genus should be "corporate legal services," but the Board saw no need to narrow the genus since a term is generic for the genus if it is generic for any of the services encompassed within the genus.

As to the consuming public's understanding of the phrase THE CORPORATE LAW GROUP, numerous website excerpts from third-party law firms [not surprisingly] showed their use of that phrase, or the phrase CORPORATE LAW GROUP, to identify the provision of legal services in the field of business sand corporate law. News stories from a variety of publications demonstrated use of those phrases to identify a subgrouping of professionals within an organization. The Board also took judicial notice of dictionary definitions of the constituent words.

Applicant Marotta put up a vigorous battle, relying on his use of the phrase since 1991, several million dollars in billings, more than $100,000 in advertising expenditures, and his policing efforts. He submitted 22 declarations from clients supporting registration, and letters from nine attorneys attesting to the professional recognition of the purported mark. Finally he directed the Board's attention to the existence of third-party registrations for THE EMPLOYMENT LAW GROUP, SOCIAL SECURITY LAW GROUP, INNOVATION LAW GROUP, WORKERS' INJURY LAW & ADVOCACY GROUP, and R&and S INTERNATIONAL LAW GROUP (but with INTERNATIONAL LAW GROUP disclaimed].

Marotta argued that the USPTO had failed to provide the required "clear evidence" of genericness, but the Board disagreed, observing that "the evidence shows ... that this case does not involve a perceived need for others to use a term, but involves a demonstrated use of the term by others.'" The declarations from clients were not probative, since "no amount of evidence can transform a generic term into a registrable mark." [That sort of begs the question, doesn't it? - ed.].

Marotta pointed out that he owned two now-expired registrations for THE CORPORATE LAW GROUP for the same services (one mark in standard character form), issued under Section 2(f), but the Board observed once again that it must assess each application on its own record," and it is not bound by bound by the decisions of Examining Attorneys in other cases. Moreover, "registrability must be determined at the time registration is sought." [Remember the CHURRASCOS case? - ed.].

Likewise, issuance of the third-party registrations does not bind the Board in this case. "More importantly, many of the third-party registrations upon which Applicant relies do not contain the same terms as in Applicant’s mark, disclaim significant wording, or are not used in connection with legal services."

The Board found clear evidence that the applied-for mark is generic, and it affirmed this refusal.

Acquired Distinctiveness: Turning to the alternative refusal, the Board noted that because Applicant Marotta seeks registration under Section 2(f), he has conceded that the mark is merely descriptive [or at least not inherently distinctive - ed.], and he bore the burden to establish acquired distinctiveness.

When a designation is highly descriptive, relatively more evidence is required under Section 2(f). The Board found Marotta's evidence insufficient:

Thus, despite the many years of use and some regional success in promoting the mark, given the highly descriptive nature of the phrase, we do not find that THE CORPORATE LAW GROUP has come to signify the commercial source of the services, but rather continues merely to inform the consumers about the nature of the services.

And so the Board rejected applicant's Section 2(f) claim.

Read comments and post your comment here.

TTABlog comment: Section 2(f) requires substantially exclusive use. Do the third-party law firm uses suffice to negate exclusivity here, right off the bat?

Note that Marotta seemed to have a source indicator in his market area in California. Can a phrase be a trademark in some area of the country, but generic everywhere else? Case in point: the term DUCK TOURS in BOSTON DUCK TOURS.

Text Copyright John L. Welch 2016.

TTAB Test: Which Of These Three Section 2(d) Refusals Was Reversed?

Last Friday, the Board decided three Section 2(d) appeals, reversing one of the refusals. Some say that 95% of the time, one can predict the outcome of a Section 2(d) appeal just from looking at the marks and the involved goods/services.  So try your luck. Which one was reversed? [Answer in first comment.]



In re Prologue Games LLC, Serial No. 86354701 (August 5, 2016) [not precedential]. [Refusal to register PROLOGUE GAMES & Design (shown below) for computer and video game software, in view of the registered mark SECOND PROLOGUE for computer and video game software].

In re Tres Vidas Organic, Inc., Serial No. 86609789 (August 5, 2016) [not precedential]. [Refusal to register TRES VIDAS & Design (shown below) for "tequila; tequila infused with vitamins," in view of the registered mark DOS VIDAS for "tequila"].

In re John Michael Brack, Serial No. 86660122 (August 5, 2016) [not precedential]. [Refusal to register SIMPLY ORANGECELLO for "alcoholic beverage, namely, orange flavored liqueur" in view of the registered mark CARAVELLA ORANGECELLO for "alcoholic beverage, namely, orange flavored liqueur"].

Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHAs here?

Text Copyright John L. Welch 2016.

TTAB Finds Stylized "É" Deceptive or Deceptively Misdescriptive for Supplements

The Board affirmed alternative refusals of the mark É, in the form shown below, for "dietary and nutritional supplements," finding it to be deceptive under Section 2(a), or alternatively, deceptively misdescriptive under Section 2(e)(1). In re Gulf Coast Pharmacy, Inc., Serial No. 86506207 (August 3, 2016) [not precedential).

Section 2(a) Deceptiveness: A mark is deceptive if (1) it consists of or contains a term that misdescribes the character, quality, function, composition, or use of the goods; (2) prospective purchasers are likely to believe that the misdescription actually describes the goods; and (3) the misdescription is likely to affect the purchasing decision of a significant portion of relevant consumers.

Examining Attorney John Lincoski maintained that (1) consumers would understand the letter E to indicate that the goods contain Vitamin E when, in fact, they do not; (2) because Vitamin E is a well-known dietary and nutritional supplement prospective purchasers likely would believe the misdescription; and (3) because Vitamin E has been widely touted as having numerous health benefits, the misrepresentation would be likely to materially affect consumers’ decisions to purchase the goods.

Applicant argued that the mark is a stylized "É" design that would be seen simply as a logo, and that producers who include Vitamin E in a product would want to clearly indicate same and would not use a logo like applicant's.

There was no question that the letter "E" is widely used in the industry to refer to Vitamin E or to products containing same. Dictionary and website evidence showed that Vitamin E is a common ingredient in nutritional supplements.

Applicant admitted that its product does not contain Vitamin E. Therefore, the Board found, applicant's mark misdescribes the goods.

The Board did not agree that applicant's mark is so highly stylized that consumers would not believe that the supplements actually contain or comprise vitamin E. The evidence included other similar products bearing an "E" in various forms.

Finally, the evidence showed that Vitamin E is associated with significant health benefits, and therefore its presence or absence as an ingredient would be relevant to the decision of consumers to purchase Applicant’s supplements.

All three prongs of the Section 2(a) test having been met, the Board affirmed the refusal to register on the ground of deceptiveness.

Section 2(e)(1) Deceptive Misdescriptiveness: The test for determining whether a term is deceptively misdescriptive involves a determination of (1) whether the matter sought to be registered misdescribes the goods and, if so, (2) whether anyone is likely to believe the misrepresentation. The Board already found that those prongs were met as part of the Section 2(a) deceptiveness test, and therefore it affirmed the alternative refusal under Section 2(e)(1).

Read comments and post your comment here.

TTABlog comment: Is this a WYHA?

Text Copyright John L. Welch 2016.

TTAB Dismisses Surname Oppositions to SCHLAFLY for Beer, Finding Acquired Distinctiveness

The Board dismissed two oppositions brought under Section 2(e)(4) and claiming that the mark SCHLAFLY for beer is primarily merely a surname. The Board did not rule on the Section 2(e)(4) issue, but instead found that Applicant St. Louis Brewery had established acquired distinctiveness in the mark, thereby overcoming any surname problem. Dr. Bruce S. Schlafly v. The Saint Louis Brewery, LLC, Opposition No. 91207224, and Phyllis Schlafly v. The Saint Louis Brewery, LLC, Opposition No. 91207225 (August 2, 2016) [not precedential].

Standing: Dr. Bruce Schlafly and Phyllis Schlafly, each filed oppositions, which the Board consolidated. It found that Dr. Schlafly had standing to bring the opposition because he uses the name "Schlafly" in his medical practice, and in his practice alcoholic beverages have a "negative connotation due to complications with it," such as "drunk driving [and] intoxication leading to injuries." Phyllis Schlafly had standing because many subscribers to her writings consider the consumption of alcohol immoral. [Remember, the standing hurdle is a very low one - ed.].

Acquired Distinctiveness: Under Section 2(f), a mark barred by Section 2(e)(4) is eligible for registration on the Principal Register upon a showing of acquired distinctiveness.

Applicant established that since 1991 it has marketed beer under marks that include the term SCHLAFLY. It began selling the beer in its own restaurant but now distributes its products in 15 states and D.C. The beer is found in bars and restaurants, in retail stores such as Wal-Mart and CVS, and in several stadiums at sporting events. In 2013 and 2014 applicant sold the equivalent of more than 12 million servings of beer in bottles and cans, and more than five million in draft form. From 2009-2014 its sales represented about 75 million commercial impressions.

The marks appear on packaging, tap handles, trucks, and store displays, in print and billboard advertising, and on collateral items such as key chains [floating? - ed.], coasters, and stickers. Its revenues have increased steadily from 1999-2014, and revenues and advertising expenditures are "substantial for a small-to-medium enterprise." Applicant's beer has won several awards and has received media recognition. Its witness testified that the company is often referred to as "Schlafly Beer."

The Board found that this evidence established that the mark SCHLAFLY has acquired distinctiveness with respect to applicant's beer.

Over a period of almost 25 years Applicant has conducted its business in such a way as to establish an association between the name SCHLAFLY and its beer; and the evidence shows that a segment of the public has taken note of Applicant’s goods under its mark and would view the designation SCHLAFLY as an indicator of the source thereof.

The fact that the surname SCHLAFLY may be active in disparate fields of endeavor (politics, medicine, etc.), "is unlikely to have interfered with" applicant's ability to build source significance in its mark.

Opposer argued that the phrase "Schlafly Beer," not the applied-for mark alone, is used by applicant and those uses do not support registration of SCHLAFLY by itself. The Board pointed out, however, that the only meaningful source indicator is the name SCHLAFLY. The evidence shows that the term SCHLAFLY is almost always strongly emphasized and is rarely combined with anything other than descriptive wording. Nothing in the evidence indicated that customers would fail to perceive SCHLAFLY as the source-indicating portion of applicant's labels, packaging, and advertising. "In any event, the record evidence ... directly shows public recognition of SCHLAFLY, alone, as a reference to Applicant's product."

Finally, the Board noted that the "competing renown of Phyllis Schlafly" would be relevant only if it interfered with applicant's development of acquired distinctiveness. Because her activities are so distant from those of applicant, "there is no reason to believe that those activities have interfered with the ability of customers to associate Applicant' mark with Applicant's goods."

And so the Board dismissed the oppositions.

Read comments and post your comment here.

TTABlog comment: FWIW, Phyllis Schlafly is also from St. Louis. Does that matter?

Text Copyright John L. Welch 2016.

Recommended Reading: Rebecca Tushet - "Registering Disagreement: Registration in Modern Trademark Law"

Those of us in the trademark trenches, involved in various day-to-day skirmishes for our clients, seldom have time to step back and consider the Big Picture. Professor Rebecca Tushnet not only considers the Big Picture, but she also writes about it. The Harvard Law Review will soon be publishing her article "Registering Disagreement: Registration in Modern Trademark Law." [pdf here or here]. In her spare time, she publishes "Rebecca Tushnet's 43(b)log."

Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find that too many acts are infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of broad interpretations of trademark law, widely recognize that our trademark registration system has significant practical problems. Among other things, a pilot study recently showed that registrants overclaimed the goods and services on which they used marks in nearly two-thirds of registrations: they affirmed to the U.S. Patent and Trademark Office (PTO) that they were using marks on goods when they weren’t. In thirteen percent of the examined cases they weren’t using the marks at all. “Intent to use” applications also generate significant numbers of paper rights with no ultimate legal existence. This “deadwood” on the register prevents legitimate users from knowing what they can and can’t do. Improperly granted registrations are harmful even from the perspective of the greatest trademark expansionists. What we haven’t done is try to unite concerns over the expansion of trademark rights with concerns over the registration system and explain their relationship to each other.

To explain the stakes, Part I of this article first provides an overview of trademark law and trademark registration. Part II examines a number of ways in which the current registration system interacts and conflicts with the current ideology of consumer confusion as the crucial source of trademark’s boundaries. Part III discusses how we could repair the system. There are a number of changes, ranging from small tweaks to sweeping statutory reforms and the rejection of the Supreme Court’s ahistorical conclusion that registration is a matter of factual accident rather than an important distinction between types of marks, that could improve the law to the benefit of trademark owners and non-owners alike.

Read comments and post your comment here.

Text Copyright John L. Welch 2016.

Vacation Day

Yesterday's G-STRING case was not precedential. Apparently the Board originally mis-marked it, but changed the marking to "not precedential."

Not Precedential: MISS G-STRING INTERNATIONAL Not Confusable With MISS NUDE INTERNATIONAL, Says TTAB

It took barely 11 pages for the Board to dismiss this Section 2(d) opposition to registration of the mark MISS G-STRING INTERNATIONAL & Design for "entertainment services in the nature of conducting beauty pageants and talent contest (sic)" [G-STRING INTERNATIONAL disclaimed]. Finding the first du Pont factor to be dispositive, the Board concluded that the applied-for mark is not likely to cause confusion with the registered mark MISS NUDE INTERNATIONAL for "entertainment services in the nature of promoting and conducting beauty pageants" [NUDE INTERNATIONAL disclaimed]. The Worlds Pageants, LLC and Camila Productions Ltd. v. Miss G-String International LLC, Opposition No. 91200183 (July 29, 2013) [not precedential].

Standing: Applicant G-String claimed that it was the owner of the registration relied on by Opposer Nude by way of a certain court judgment in Florida, but the Board pointed out that it has no jurisdiction to adjudicate issue arising under Florida law. According to the records of the USPTO,  Opposer Nude is the owner of the pleaded registration, and that sufficed to establish standing.

Likelihood of Confusion: Beginning with the second and third du Pont factors, the Board found the involved services to be identical. It therefore presumed that the services are offered in the same channels of trade to the same classes of consumers. Nonetheless, "confusion in not likely because of the crucial difference in the marks."

The Board found that the dominant portion of Applicant G-String's mark is comprised of the word G-STRING, which is depicted in gold script and is larger than the other words in the mark, and the depiction of a pink g-string. The words MISS and INTERNATIONAL, the only elements common with Opposer Nude's mark, are very small in comparison.

[W]e find that the overall commercial impression of Applicant's mark is dominated by the word G-STRING and its design feature, a pink G-STRING, which emphasizes the word "G-STRING," and that this weighs heavily against a conclusion that confusion is likely.

The Board acknowledged that when the services of the parties are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. "But Applicant's mark is so different from the registered mark that even when used on identical services, confusion is unlikely. 'No mechanical rule determines likelihood of confusion, and each case requires weighing of the facts and circumstances of the particular mark.'" In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010).

Citing Kellogg Co. v. Pack’em Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991) ("We know of no reason why, in a particular case, a single du Pont factor may not be dispositive"), the Board dismissed the opposition.

Read comments and post your comment here.

TTABlog comment: Why is this precedential? Actually, it was initially marked precedential, but then changed to non-precedential.

Text Copyright John L. Welch 2016.