Thursday, December 21, 2017

TTAB Test: Which Of These Three Section 2(d) Refusals Was Reversed?

A TTAB judge once remarked 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. Here are three TTAB decisions rendered recently in Section 2(d) appeals. One refusal was reversed. Which one? [Answer in first comment].



In re Ben Zour, Serial No. 87210472 (December 19, 2017) [not precedential] (Opinion by Judge Francie R. Gorowitz) [Section 2(d) refusal to register the mark SHEPHERD ARTISAN COFFEE & Design (below left) for "coffee shops" [ARTISAN COFFEE disclaimed] in view of the registered marks SHEPHARD'S BEACH RESORT in standard character form, and SHEPARD'S BEACH RESORT & Design (below right) [BEACH RESORT disclaimed], for "hotel services and restaurant services"].


In re Delta Faucet Company , Serial No. 87044505 (December 19, 2017) [not precedential] (Opinion by Judge Marc A. Bergsman) [Section 2(d) refusal of SATORI for “plumbing products, namely, faucets and showerheads" in view of the identical mark SATORI for "bathroom furniture"].


In re Security Automation Systems, Inc., Serial Nos. 86885126 (December 14, 2017) [not precedential] (Opinion by Judge Lorelei Ritchie) [Section 2(d) refusal to register the mark SAS SECURITY AUTOMATION SYSTEMS and Design (shown below) for "installation of security systems for buildings and curtilage sold as subcontracted services to contractors engaged in building and construction of correctional institutions, namely, security systems for on-site monitoring and control of correctional institution buildings and curtilage by customers of said contractor" [SECURITY AUTOMATION SYSTEMS disclaimed] in view of the registered mark S-A-S ALARM SERVICE for "monitoring of security system" [ALARM SERVICE disclaimed].


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Text Copyright John L. Welch 2017.

5 Comments:

At 6:16 AM, Blogger John L. Welch said...

The first one was reversed.

 
At 7:21 AM, Blogger Heather Bond Vargas, Esq. said...

Yeah!!! I finally got one right!

 
At 10:24 AM, Blogger Gene Bolmarcich said...

That is a shocking reversal for the Board. Nine times out of ten they would have said SHEPHERD and SHEPHARD'S are close enough, ignoring the "descriptive" parts, and that would be the end of it. How are we supposed to know which Board we're going to get for any given appeal?

 
At 4:22 PM, Anonymous Anonymous said...

I thought the first one was the weakest. What's shocking is that Raj A. finally practiced some law for his client.

 
At 12:40 PM, Anonymous Arizona Trademark Attorney said...

Nice. Just as good as Applicant's argument that SHEPHERD in the applied-for mark "suggests the legendary origin of coffee: a ninth century Ethiopian shepherd who discovered the energizing effects of the red berries of the coffee plant." The difference in meaning, despite the near phonetic equivalence, of SHEPHERD and SHEPHARD, together with the possessive form of the registered mark and its significance with regard to a beach resort, made the appeal worthwhile. Commercial impression wins the day.

 

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