TTABlog Quarterly Index: July - September 2017

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Section 2(d) - Likelihood of Confusion:

• TTAB Test: Three Recent Appeals From Section 2(d) Refusal
• TTAB Test: How Would You Decide These Three Recent Section 2(d) Appeals?
• TTAB Test: Is "GUILTY OF EVERYTHING GOE" Confusable With GOE SURF WEAR & Design for Clothing and Gear? [No]
• Precedential No. 26: Licensee Cannot Establish Priority Based On Licensor's Use
• TTAB Test: Are These Barbeque Grills Confusingly Similar?[Yes]
• MINT VELVET Not Confusable with MIDNIGHT VELVET for Clothing, Jewelry, Says TTAB
• Despite Consent Agreement, TTAB Affirms Section 2(d) Refusal of NORDIC (Stylized) For Live Plants
• TTAB Test: Is BIG KAHUNA DONUTS Confusable With BIG KAHUNA CLIFF'S HAWAIIAN COFFEE? [No]
• TTAB Test: Is UHAI (Swahili) Confusable with LIFE FOR HAIR & Design for Hair Care Products? [Yes]
• TTAB Test: Is BON BON & Design Confusable With BON O BON for Candy? [No]
• TTAB Test: Which of These Four Section 2(d) Refusals Were Reversed?
• TTAB Test: Which of these Two Section 2(d) Refusals Was Reversed?
• TTAB Test: Is THE CANNIBAL for Beer Confusable with THE CANNIBAL for Restaurant Services? [No]
• TTAB Test: Which of These Three Section 2(d) Refusals Was Reversed?
• TTAB Test: Is LAVA GEAR for Survival Wear Confusable With LAVA ACCESSORIES for Travel Clothing? [No]
• TTAB Orders Cancellation of MG-IP Registration for Legal Services Due to Confusion with M & G
• TTAB Finds MANHATTAN for Upholstered Furniture Confusable with MANHATTAN CABINETRY for Custom Furniture
• FURNITUREBOBS Confusable With BOB'S DISCOUNT FURNITURE, Says TTAB
• TTAB Test: Is "IVE" for Protective Work Gloves Confusable with "EB & IVE" for Clothing? [Yes]

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

• TTAB Test: Is FARM TO TABLE Merely Descriptive of Wines? [Yes]
• TTAB Test: Is GLOBAL GROWERS Merely Descriptive of Frozen Fruits and Vegetables? [No]
• GOLDEN DOODLE Merely Descriptive of Retail Gifts Shops, Says TTAB
• SOUND STREAM (Stylized) Merely Descriptive of Digital Music Delivery, Says TTAB
• TTAB Test: Is WARTSEAL Merely Descriptive of Wart Removing Preparations? [Yes]
• TTAB Test: Is TOPDOC Merely Descriptive of Physician Referral Services?

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

• Precedential No. 28: TTAB Affirms Surname Refusal of OLIN, Rejects Transfer of Acquired Distinctiveness under 2(f)
• TTAB Test: Is BRASSERIE KUNZ Primarily Merely a Surname? [Yes]
• TTAB Test: Is "FERET" Primarily Merely a Surname? [No]
• Reversing a Surname Refusal, TTAB Finds BROE (Stylized) Has Acquired Distinctiveness
• CAFC Vacates TTAB's EARNHARDT COLLECTION Decision, Finding Surname Analysis Unclear

Section 2(e)(5) - Functionality:

• Precedential No. 19: TTAB Affirms Section 2(e)(5) Functionality Refusal of Wind Turbine Configuration

Section 2(f) - Acquired Distinctiveness:

• Precedential No. 28: TTAB Affirms Surname Refusal of OLIN, Rejects Transfer of Acquired Distinctiveness under 2(f)
• Precedential No. 23: MEDICAL EXTRUSION TECHNOLOGIES Lacks Aquired Distinctiveness, Says TTAB
• VANILLA JAVA PORTER Lacks Acquired Distinctiveness for Beer, Says TTAB

Rule 2.61 Request for Information:

• TTAB Affirms Refusal For Failure to Comply with Rule 2.61 Information Request

Specimen of Use/Failure to Function/Nonuse/Phantom Mark:

• TTABlog Test: Is this Mutilation of a Tire-and-Boot Design, or Not?
• TTAB Enters Judgment Summarily in #TIDALTUESDAY Opposition On Ground of Nonuse
• Precedential No. 24: Yellow Cheerios Box Lacks Acquired Distinctiveness, Fails to Function as a Trademark
• Divided TTAB Panel Rejects Website Specimen of Use for Fabric
• Precedential No. 22: Breast Cast Design Fails to Function as a Mark for Cancer Awareness Services
• TTAB Rejects Shape of Printed Label as a Phantom Mark
• "STILL SPOONING" Fails to Function as a Mark for Custom Imprinting and Retail Services, Says TTAB

Dilution:

• SUPER WOMAN OF REAL ESTATE Dilutes SUPERMAN, Says TTAB

Fraud:

• TTAB Denies Fraud Claim But Sustains SUNDICATORS Section 2(d) Opposition

Genericness:

• TTAB Finds QLED Generic for ...... Guess What?
• Precedential No. 25: On Remand, TTAB Again Finds PRETZEL CRISPS Generic For Pretzel Crackers
• E.D. Va. Reverses TTAB: BOOKING.COM Not Generic for Hotel Reservation and Travel Agency Services
• TTAB Finds POND POTS Generic for .......Guess What?
• Precedential No. 21: TTAB Finds "COFFEE FLOUR" Generic for ...... Guess What?
• TTAB Affirms Genericness Refusal of CHOCOLATE GLAÇAGE for .... Guess What?
• TTAB Test: Is "ROSE" Generic for Beer-Based Mixed Beverages?

Ownership:

• TTAB Sustains Opposition to PYNK for Magazines: Applicant Not Sole Owner of Mark

Concurrent Use: Intent:

• TTAB Okays Concurrent Use Agreement Regarding FRASCA for Restaurant Services

Procedural Issues:

• Precedential No. 27: TTAB Suspends LATEA Opposition In View of Arbitration Clause
• Precedential No. 20: TTAB Forgives Party for Untimeliness of Discovery Requests Under New Board Rules
• TTAB Dismisses Section 2(e)(1) Opposition to BLUE COLLAR BREWERY Due to Lack of Standing
• Applying Preclusion Based on TTAB Decision, Ohio District Court Denies Non-Infringement Counterclaim

CAFC Decisions:

• CAFC Affirms TTAB: In Context, FIRST TUESDAY Merely Descriptive of Lottery Services
• CAFC Affirms TTAB: Limitation of Goods to Those Associated with "will.i.am" Found Meaningless
• CAFC Vacates TTAB's EARNHARDT COLLECTION Decision, Finding Surname Analysis Unclear

Other:

• TTAB Schedules Nine (9) Oral Hearings for September 2017
• TTAB Schedules Seven (VII) Oral Hearings for August 2017
• TTABlog Mid-Year Report: 18 Precedential Opinions Thus Far
• TTAB Schedules 16 Oral Hearings for July 2017

Text Copyright John L. Welch 2017.