TTAB Test: Which Of These Three Section 2(d) Refusals Was 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 consideration are three recent TTAB decisions in Section 2(d) appeals. One refusal was reversed. Which one? [Answer in first comment].
In re Norková, Serial No. 79199465 (September 28, 2018) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of ZIPZAP for "“drying racks for laundry; clothes pegs" in view of the identical mark registered for "scissors, in particular hair cutting scissors, manicure scissors, sheet-metal shears, poultry shears, cable scissors; tree pruning shears; nippers, nail nippers, cuticle nippers; files; utility knives and pliers"].
In re Treehouse Pictures, LLC, Serial No, 87142861 (September 28, 2018) [not precedential] (Opinion by Judge George C. Pologeorgis) [Section 2(d) refusal of the TREEHOUSE PICTURES & Design for “Film production; television show production" [PICTURES disclaimed] in view of the registered mark TREEHOUSEDIRECT for "Entertainment services, namely, the provision and distribution of prerecorded television programs and films via a global computer network"].
In re Paradyce Clothing Company, Inc., Serial No. 87562296 (October 1, 2018) [not precedential] (Opinion by Judge Frances Wolfson) [Section 2(d) refusal of PARADYCE for various clothing items, in view of the registered mark PAR-A-DICE HOTEL-CASINO for overlapping clothing items].
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Text Copyright John L. Welch 2018.
posted by John L. Welch @ 10/08/2018
4 comments
4 Comments:
The third one was reversed
I'm on the fence as to whether the third should have been reversed, but gee whiz, some of the Board's fact-finding is strained. The word "par" in the cited mark PAR-A-DICE HOTEL - CASINO would suggest a "par sheet," i.e., "a document that details how a particular slot machine is designed." Seriously? What infinitesimal percentage of buyers of t-shirts, hats, and the like know that a document that details how a particular slot machine is designed is called a "par sheet"?
I'm shocked, shocked I'd tell you. A rational, logical, real-world business 2(d) non-precedential opinion from the TTAB?
Actually, I am shocked.
I think the Board wanted to reverse the third one because Registrant was selling promotional clothing in a gift shop in its rinky dink casino and Applicant is an urban clothing company in DC. In the real world, there would be absolutely no likelihood of confusion - but the cases on clothing and promotional items are horrible, so they finessed a bit. Still, the cited registration was registered under 2(f), probably because of the pair of dice connotation. Clearly pair of dice vs. paradise has a different feel.
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