TTAB Test: How Would You Rule in These Three TTAB Appeals Decided Two Days Ago?
Here are three appeals decided by the TTAB two days ago: a Section 2(e)(1) mere descriptiveness refusal, a Section 2(e)(4) surname refusal, and a Section 2(d) likelihood of confusion refusal. Put on your judicial robes and see if you can figure out how these recent appeals came out. [Answers will be found in first comment].
In re Bedgear LLC, Serial No. 86690878 (May 10, 2017) [not precedential] (Opinion by Judge Greenbaum). [Section 2(e)(1) mere descriptiveness refusal of INDEPENDENT SUSPENSION for "Mattresses and parts thereof, mattress foundations and parts thereof, mattress toppers, pillows, back rest pillows, kids pillows and sleeping bags." Applicant argued that "independent suspension" will bring to mind cars rather than bedding, thus rendering the proposed mark suggestive and incongruous.]
In re Falcon, Serial No. 86673659 (May 10, 2017) [not precedential] (Opinion by Judge Lykos). [Section 2(e)(4) surname refusal of HUSMAN “Hats; Long-sleeved shirts; Shirts; Sweat shirts; T-shirts.” Applicant contended that HUSMAN is a rare surname (938 listings), and that her mark is a coined term representing a play on the words "husband" and "man" to refer to an unmarried man in a committed relationship.].
In re Cruz, Serial No. 86845373 (May 10, 2017) [not precedential] (Opinion by Judge Gorowitz). [Section 2(d) refusal of PA’DENTRO for "Liquor and liqueur beverages, namely, flavored tequila and ready to drink tequila-based beverages; Tequila," in view of the registered mark ADENTRO for "wines." Applicant argued that the involved goods are completely different because Applicant’s tequila “is a liquor exclusive to Mexico…made from 100% Blue Agave” with an alcohol content ranging from 35% to 55%, whereas Registrant sells a domestic wine made with Spanish varietals using old world wine making techniques.].
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Text Copyright John L. Welch 2017.
posted by John L. Welch @ 5/12/2017
6 comments
6 Comments:
All three refusals were affirmed. In the first, the Board pointed out that the determination of mere descriptiveness is made in the context of the identified goods, not in the abstract. In the second the Board observed that there is no exception in 2(e)(4) for rare surnames. And in the third, the Board rejected the attempt to add limitations to the identifications of goods in the application and cited registration.
I can't decide which of those decisions I find the most aggravating. All three of them touch a different nerve.
I thought the applicant would have won the first one. "Independent Suspension" is merely descriptive for mattresses and related goods??? Clearly a suggestive mark in my mind. It gets hard to advise clients when you know 9 out of 10 examining attorneys would have never made that rejection, and then the one that makes the rejection is affirmed on appeal.
Lord knows, don't let the consumers get confused between that Mexican Tequila and Wine! It is enough to make a man want to take a nap on his suspension hammock. Thank you to the USPTO for looking out for the little guy as we cannot really think for ourselves. -John Q. Husman
Is there some standard of giving deference to the examiner that I am not accounting for? Otherwise I have a hard time with the first and last one in particular.
i got them all wrong... :-)
I got them all wrong, too. Either I'd better avoid TTAB when I need a career change, or perhaps I'm just the person TTAB needs in their ranks, given that their decisions often are puzzling to many folks :)
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