TTABlog Quarterly Index: April - June 2017

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Section 2(a) - Deceptiveness:

• TTAB Finds PLAZMA and PLAZMA REACTIVE PUMP Deceptive and Deceptively Misdescriptive for Supplements
• Precedential No. 8: TTAB Finds KLEER ADHESIVES Deceptive, But Not KLEER MOULDINGS and KLEER TRIMBOARD

Section 2(a) - Disparagement:

• Supreme Court Declares Disparagement Provision of Section 2(a) Unconstitutional"

Section 2(a) - False Association:

• TTAB Reverses False Association Refusal of ME AND THE MOUSE TRAVEL & Design

Section 2(b) - Flag, coat of arms, insignia:

• Precedential No. 7: TTAB Affirms Section 2(b) Refusal of Mark Simulating the Prince of Wales Emblem

Section 2(d) - Likelihood of confusion:

• VAGISAN Not Confusable With VAGISIL for Feminine Products, Says TTAB
• MIROSA for Beer Confusable with MIRASSOU, a Strong Mark for Wine, Says TTAB
• Despite Actual Confusion, Divided TTAB Finds PARTZILLA Not Confusable with REVZILLA for Motorcyle Parts
• LUSH VAPOR for E-Cigarette Flavors Not Confusable With LUSH for Cosmetics, Says TTAB
• TTAB Sustains Maryland "Two Chickens" Opposition on Section 2(d) Ground

• TTAB Test: Which of These Three Section 2(d) Refusals Was Reversed?
• Precedential No. 11: TTAB Affirms Section 2(d) Refusal of Hockey Logo, Finding No Consent to Registration, 13th Factor Outweighed
• TTAB Test: Are These Two "EIS & Design" Marks Confusable for Engineering Services?
• TTAB Test: Are Pet Store Services Related to Pet Hotel Services? [Yes]
• Pro Se Applicant Fends Off Feckless U.S. Marines in "MARINE ONE DOWN" Opposition
• TTAB Reverses 2(d) Refusal of ARC: Different Services and Channels of Trade, Sophisticated Purchasers
• TTAB Test: Are Sauces and Spice Rubs Related to Beer and Bakery Goods? [Yes]
• TTAB Affirms Section 2(d) Refusal Despite Addition of House Mark "ISATORI" to "BIOGROW" for Supplements
• TTAB Reverses Section 2(d) Refusal of CROSBY QUIC-TAG over QUICK TAG for Identification Tags
• TTAB Reverses Section 2(d) Refusal of "PAPER" over "BAMBOO PAPER" for Digital Notebooks
• Finding Watches and Clothing Related, TTAB Affirms Section 2(d) Refusal of MARIE-ANTOINETTE
• "CV INVESTMENTS & Design" Confusable With "CV & Design" for Investment Services, Says TTAB
• TTAB Finds OVATION FOR MEN & Design Confusable with Two Registered OVATION Marks

Section 2(e)(1) - Mere Descriptiveness:

• TTABlog Test: Is GOLDENBERRY Merely Descriptive of Fresh Fruit? [Yes]
• TTAB Test: Is "PPL" Merely Descriptive of Pre-Paid Legal Services? [Yes]
• WYHA? NANOCHIP Merely Descriptive of RFID Tags, Says TTAB
• TTAB Test: Which of these Three Mere Descriptiveness Refusals Was Reversed?

Section 2(e)(1) - Deceptive Misdescriptiveness:

• Precedential No. 15: LITTLE MERMAID Merely Descriptive of Dolls, Says TTAB
• Precedential No. 14: TTAB Affirms Mere Descriptiveness Refusal of WELL LIVING LAB for Research Services
• TTAB Finds PLAZMA and PLAZMA REACTIVE PUMP Deceptive and Deceptively Misdescriptive for Supplements

Section 2(e)(2) - Primarily Geographically Descriptive:

• TTAB Affirms Section 2(e)(2) Refusal of LAUGHLIN RANCH: Geographically Descriptive of Golf Courses and Spas

Section 2(e)(4) - Primarily Merely a Surname:

• Precedential No. 16: Rejecting Equivalents Argument, TTAB Affirms Surname Refusal of WEISS WATCH COMPANY
• Precedential No. 10: TTAB Sustains Surname Claim Against AZEKA'S RIBS, But Proceeds to Find Opposer's Mark Abandoned
• Precedential No. 9: TTAB Affirms Surname Refusal of BELUSHI'S for Travel and Restaurant Services

Section 2(f) - Acquired Distinctiveness:

• Lululemon Yoga Mat Configuration Lacks Acquired Distinctiveness, says TTAB
• TTAB Finds Section 2(f) Evidence for "CERTIFIED CHIANINA BEEF" Inadequate

Abandonment:

• TTAB Sustains Dave Brock's (HAWKWIND) Opposition to NIK TURNER'S HAWKWIND
• Precedential No. 18: Finding Abandonment of Opposer's Mark, TTAB Dismisses ARMBRUSTER STAGEWAY Opposition
• Precedential No. 10: TTAB Sustains Surname Claim Against AZEKA'S RIBS, But Proceeds to Find Opposer's Mark Abandoned
• CITY CLUB Mark Survived Tropical Storm Sandy, Says TTAB

Concurrent Use:

• TTAB Accepts Concurrent Use Agreement for Registration of BRAS FOR THE CAUSE in 43 States

Failure to Function/Phantom Mark:

• Precedential No. 13: TTAB Reverses Mutilation and Phantom Mark Refusals of U. Miami Ibis Design
• Precedential No. 12: Return of the Phantom Mark Refusal

Genericness:

• Two Genericness Cases: BAGCORP and PATINA - Can You Guess What Goods?

Specimen of Use/Lawful use:

• Precedential No. 17: TTAB Affirms Refusal of PHARMACANN for Medical Marijuana Services Due to Illegality under CSA
• Precedential No. 13: TTAB Reverses Mutilation and Phantom Mark Refusals of U. Miami Ibis Design

Discovery/Evidence/Procedure:

• Rejecting Laches Defense, TTAB Orders Cancellation of Two Registrations for Restaurant Services
• Applying Claim Preclusion Based on District Court Default, TTAB Enters Judgment Against ENTREPRENEURESS Applicant
• Precedential No. 10: TTAB Sustains Surname Claim Against AZEKA'S RIBS, But Proceeds to Find Opposer's Mark Abandoned
• Precedential No. 6: Applicant Complied With Rule 2.61(b) Request for Information, Says TTAB
• Precedential No. 5: TTAB Rejects Untimely, Fee-less Paper Opposition Filed Sans Petition to Director

CAFC Rulings:

• CAFC Affirms TTAB, Upholds Cancellation of Individual's Registration of Service Mark Due To Non-Ownership
• Professor McCarthy Comments on CAFC's INSIGNIA Ruling
• CAFC Reverses TTAB's INSIGNIA Decision, Remands for Consideration of Section 2(d) "Fame"

Recommended Reading:

• Ted Davis: Annual Review of U.S. Federal and State Case Law
• TTABlog Bonus: 2017 Edition of "Advanced Practice Tips from the TTAB"
• CAFC and TTAB Registration Decisions: July 2015 to April 2017
• Recommended Reading: Prof. David S. Welkowitz, "Trademark Trial and Appeal Board, Meet the Constitution"

Other:

• USPTO Issues New Examination Guide for Section 2(a) Disparagement and Scandalousness Cases
• TTAB Posts June 2017 Hearing Schedule
• USPTO Seeks Comments on Possible New Streamlined Cancellation Procedure
• TTAB Test: How Would You Rule in These Three TTAB Appeals Decided Two Days Ago?
• TTAB Posts May 2017 Hearing Schedule
• Report on HAWKWIND Oral Hearing - Raphael Gutierrez
• TTAB Schedules HAWKWIND Hearing for April 24 at Silicon Valley USPTO

Text Copyright John L. Welch 2017.