TTAB Test: Which of These Four Section 2(d) Refusals Were Reversed?
It has been said that one can predict the outcome of a Section 2(d) appeal 95% of the time just by looking at the marks and the goods or services. Presented for your contemplation are four recent TTAB decisions in Section 2(d) appeals. At least one was reversed. What do you think? [Answer in first comment].
In re Inca Tea, LLC, Serial No. 85886579 (August 3, 2017) [not precedential] (Opinion by Judge Anthony R. Masiello). [Section 2(d) refusal to register the mark shown below left, for "Teas comprised of purple corn; tea blends comprised of purple corn" [TEA, 100% ALL NATURAL INGREDIENTS, and ORIGINAL disclaimed] in view of the registered mark shown below right for "teas, namely, linden and chamomile" [FOOD disclaimed]].
In re A.H.C.S., Inc., Serial No. 86782221 (August 3, 2017) [not precedential] (Opinion by Judge Karen Kuhlke) [Section 2(d) refusal of the mark GWYN'S for "Restaurant services; Restaurant services featuring fine dining on ski area mountain," in view of the registered mark GWIN’S LODGE for "Resort lodging services"].
In re Adrenalin Gaming, LLC, Serial No. 86877784 (August 4, 2017) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of the mark ADRENALIN ATTRACTIONS for "amusement part rides" [ATTRACTIONS disclaimed] in view of the registered mark ADRENALIM for "amusement park rides and water park rides"].
In re Primary Investments Grp. Ltd., Serial No. 86732652 (August 4, 2017) [not precedential] (Opinion by Judge Peter W. Cataldo). [Refusal to register MULTI-FIBER COLON CLEANSE on the Supplemental Register, for "vitamins and nutritional supplements," in view of the registered mark COLON CLEANSE for "bulk forming fiber laxative"].
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Text Copyright John L. Welch 2017.
posted by John L. Welch @ 8/08/2017
4 comments
4 Comments:
The first (INCA) and the fourth (COLON CLEANSE) were reversed.
W00t! Right! (For the first time)
I suppose I'll ask the obvious question - what's the point of registering MULTI-FIBER COLON CLEANSE, let alone taking an appeal? The applicant (soon to be registrant, I guess) will have a Supplemental Registration for a term that's bordering on generic? The TTAB decision effectively makes COLON CLEANSE an unenforceable trademark based on reversing the 2d following all the evidence showing that term to be super weak at best.
Hope they got what they wanted but paying for any of that work seems silly.
The person who owns the COLON CLEANSE registration must be asking the same question?
Why do I have an incontestable registration if they are going to let someone have it? Now I have to file an Opposition, but in effect the Board already ruled against me?
I think this should have been upheld and the Applicant should have been forced to file a Cancellation on the grounds the COLON CLEANSE mark is generic.
Now the prior Registrant has the burden of proof in an Opposition and a poorly written Board decision that totally screws them. So much of the evidence was admitted improperly and just accepted by the Board. No one objected so the Board never said anything and then completely opines on it?
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