TTAB Test: Which of These Three Section 2(d) Refusals was Reversed?
Supposedly one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods. Here are three recent Section 2(d) appeals. Which one resulted in a reversal? [Answer will be found in first comment].
In re Werbner, Serial No. 87003366 (December 22, 2016) [not precedential]. [Section 2(d) refusal of PRACTICE SAFE SIGHT for eyewear products, including lenses for computer glasses, framed lenses, and magnification lenses, in view of the registered mark SAFESITE for "opthalmic lenses"].
In re Sharron Gilty, Serial No. 86618610 (December 23, 2016) [not precedential]. [Section 2(d) refusal of the mark shown below, for "bowties," in view of the registered mark BOW CHIC, in standard character form, for “wristlets and wristlet anchors for corsage, namely, bracelets" [BOW disclaimed]].
In re Water Babies Limited, Serial No. 79163879 (December 16, 2016) [not precedential]. [Section 2(d) refusal of the mark shown below for "Printed instructional and teaching material in the field of
swimming instruction," in view of the registered mark WATERBABIES for "swimming instruction"].
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Text Copyright John L. Welch 2016.
posted by John L. Welch @ 12/28/2016
5 comments
5 Comments:
The third one was reversed.
That surprised me! I thought the first one should be reversed.
I thought the first one would have been reversed too since there was an additional term.
BS decision, imo. They affirmed the 41 services but reversed Class 16 because the examiner did not submit enough evidence to make them happy. It's right there in the ID, materials on swimming instruction vs. swimming instruction. How much proof is needed to show that these are similar? WHO ELSE would buy these materials, WHO ELSE would be targeted?? Farce. If they were materials about swimming, e.g. magazines on the subject of swimming, then I can understand, but "swimming instruction" is not so broad that there would need to be overwhelming, convincing evidence of their relatedness to "swimming instruction" services. Terrible decision, made solely, imo, as a "make-up call" for the PTO's botching of the missed 2d in the earlier application. Absent any "error on the USPTO" question, this is a bullseye WYHA. Identical literal portions, identical services in 41, and identical subject matter/field/area/targeted customers in Class 16. Could be worst decision of 2016.
Of the three I thought the first one was reversed. I am as confused as KJLHDEA
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