Tuesday, January 10, 2017

In 2016, How Often Did the TTAB Affirm Section 2(d) Refusals? 2(e)(1) Mere Descriptiveness Refusals?

I reviewed 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 2016. The highly unscientific results are set out below.


Section 2(d): I counted 249 Section 2(d) refusals, of which 228 were affirmed and 21 reversed. That's an affirmance rate of about 91.5%. [A high water mark for the last few years].

Four of the opinions were deemed precedential, all affirmances: TIME TRAVELER BLONDE; JAWS; HOUSEBOAT BLOB; and MT. RAINIER Logo;

NB: Some cases involved an applied-for mark in standard character and stylized or design form, and I counted that situation as one refusal.

Section 2(e)(1) mere descriptiveness: Of the 91 Section 2(e)(1) mere descriptiveness refusals, 82 were affirmed and 9 reversed, for an affirmance rate of approximately 90%, again on the upper end of the spectrum for recent years.

Three of the opinions were deemed precedential, all affirmances: IMÁGENES ESCONDIDAS; HOUSEBOAT BLOB; and DEEP! DEEP! DISH PIZZA. In a fourth precedential decision, the Board affirmed a mere descriptiveness refusal of HEMP HOME HEALTH because the applicant did not address that refusal in its appeal.

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Text Copyright John L. Welch 2017.

2 Comments:

At 11:59 AM, Anonymous Carole Barrett said...

Thanks for the statistics.

 
At 2:42 AM, Blogger Michael Sander said...

These stats are great. There are two additional precedential affirmances under 2(e)(1) in 2016, the latter came right before the new year:
https://www.docketalarm.com/cases/TTAB/86409857/In_re_Heather_Harley_and_Carolyn_Jones/
https://www.docketalarm.com/cases/TTAB/85890412/In_re_LC_Trademarks_Inc./

 

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