Saturday, June 29, 2019

TTABlog Quarterly Index: April - June 2019

As of March 1, 2019, BNA apparently is no longer publishing a print edition of the USPQ, and the format of citations to USPQ cases has changed. A citation now looks something like this: A v. B., 2019 USPQ2d 111514 (TTAB 2019). By the way, don't forget that e-mail subscriptions to the TTABlog are available. Just enter your e-mail address in the box on the right to receive a daily update via Feedblitz. You may also follow the TTABlog on Twitter: @TTABlog.


Section 2(a) - Deceptiveness:
Section 2(a) - False Connection:
Section 2(a) - Immoral or Scandalous:


Section 2(b) - Flag or Other Insignia:
Section 2(c) - Consent to Register:


Section 2(d) - Likelihood of Confusion:

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

Section 2(e)(1) - Deceptive Misdescriptiveness:
Section 2(e)(2) - Primarily Geographically Descriptive:
Section 2(e)(3) - Primarily Geographically Deceptively Misdescriptive:
Section 2(e)(4) - Primarily Merely a Surname:
Section 2(e)(5) - Functionality:
Genericness:
Lack of Bona Fide Intent:
Nonuse/Specimen of Use/Failure to Function:
Ownership:
Discovery/Evidence/Procedure:
CAFC Opinions:
Recommended Reading:
Other:
Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/29/2019   0 comments

Friday, June 28, 2019

Supreme Court Holds Section 2(a) Ban on Registration of Immoral or Scandalous Marks Unconstitutional

In case you haven't heard, the U.S. Supreme Court has ruled that Section 2(a)'s "immoral or scandalous" bar to trademark registration "infringes the First Amendment" and is therefore invalid as unconstitutional. Iancu v. Brunetti, 588 U.S. ____, 2019 USPQ2d 232043 (2019). Rather than adding yet another article to the thousands already written about Brunetti, let me provide my nutshell summary of the decision: the Government cannot refuse to register a mark just because it doesn't like the mark. For a more scholarly take on the decision, I suggest Prof. Rebecca Tushnet's comments at her 43(b)log (here).


Brunetti's application for the mark FUCT for clothing will now be published for opposition. Some suggest that a certain British clothing company might oppose on Section 2(d) grounds. Or a competitor might challenge the mark on the ground that the term is a common meme or expression that consumers would not perceive as a source indicator.

In any event, based on my own decades of experience in trademark law, I doubt that this decision will have any significant impact on trademark practice. There are certainly other recent Supreme Court rulings whose impact dwarfs that of the Brunetti decision.

Read comments and post your comment here.

TTABlog comment: What say you?

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/28/2019   0 comments

TTAB Posts July 2019 Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-A-Bee) has scheduled seven (VII) oral hearings for the month of July 2019. The hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. Briefs and other papers for these cases may be found at TTABVUE via the links provided.



July 2, 2019 - 1 PM: In re Medical Telepresence, P.A., Serial No. 87819361 [Refusal to register VIRTUAL ERS for "Medical consultations provided via phone, online chat or videoconferencing; Telemedicine service" on the ground of genericness or, alternatively, mere descriptiveness and lack of acquired distinctiveness].


July 9, 2019 - 11 AM: Hanscomb Consulting, Inc.v. Hanscomb Limited, Concurrent Use No. 94002720 [Concurrent use proceeding involving the mark shown below for "Business consultation, particularly in the fields of estimating contract work, business and economic feasibility studies and data analysis/dissemination, cost analyses, project risk management, negotiation and settlement of commercial transactions for third parties, scheduling services, cost assessment services; project management services for others for business purposes in the fields of architecture, engineering interior design and urban planning design" in view of the applied-for mark HANSCOMB for "Business consultation, particularly in the fields of estimating contract work, business and economic feasibility studies and data analysis/dissemination, cost analyses, project risk management, negotiation and settlement of commercial transactions for third parties, scheduling services, cost assessment services; project management services for others for business purposes in the fields of architecture, engineering interior design and urban planning design"].


July 11, 2019 - 11 AM: In re My Style S.r.l., Serial No. 86698170 [Section 2(d) refusal of MY STYLE BAGS for handbags luggage, and numerous other class 18 goods, including "Carrying cases for electronic equipment, namely, cell phones and tablet computers" in view of the registered mark "myStyle" (in standard character form) for "Bags and cases specially adapted for holding or carrying portable telephones and telephone equipment and accessories; Battery cases; Beeper carrying cases; CD cases; Carrying cases for electronic equipment, namely, cell phones and tablet computers; CD cases" in Class 9].


July 17, 2019 - 1 PM: Brothers Franchise & Development, LLC v. Three Brothers Brewing LLC., Opposition No. 91232361 [Section 2(d) opposition to registration of BROTHERS CRAFT BREWING for "Beer, ale, lager, stout, porter, shandy" [CRAFT BREWING disclaimed] in view of several BROTHERS-formative marks for bar and restaurant services and opposer's alleged common law rights in the mark BROTHERS for beer].


July 18, 2019 - 1 PM: In re Electronic Payments Inc., Serial No. 87049492 [Refusal to register ELECTRONIC PAYMENTS for credit card and gift card processing services, on the ground of genericness or, alternatively, mere descriptiveness and lack of acquired distinctiveness].


July 24, 2019 - 1 PM: P.C. Richard & Son Long Island Corporation v. Jon Bargains Inc., Opposition No. 91223383 [Section 2(d) opposition to registration of WIZGEAR for "Electronic accessories, namely, cell phone cases, computer tablet cases, protective cases for smartphones and computer tablets, smartphone mounts, computer tablet mounts; Small electronics, namely, headphones and earphone" in view of the registered marks THE WIZ and NOBODY BEATS THE WIZ for retail services for, inter alia, computers and electronics and electronic accessories and appliances, computer hardware and audio and visual equipment].


July 31, 2019 - 1 PM: Double Coin Holdings, Ltd. v. Tru Development, Cancellation No. 92063808 [Petition for cancellation of a registration for the mark ROAD WARRIOR for tires, in view of the registered mark WARRIOR for tires, with a counterclaim for abandonment and an affirmative defense of laches].


Read comments and post your comment here.

TTABlog note: Any predictions? See any WYHA?s?

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/28/2019   1 comments

Thursday, June 27, 2019

WYHA? TTAB Affirms Geographically Deceptive Refusal for Hong Kong-Based Kitchenware Company’s TODDLER COPENHAGEN Mark

[This guest post was written by Amanda B. Slade, an associate in the Trademark Group at Wolf, Greenfield & Sacks, P.C.]. The Board upheld Section 2(e)(3)  refusals of the mark shown here (with COPENHAGEN disclaimed), finding the mark to be primarily geographically deceptively misdescriptive of “tableware, namely, forks, knives, spoons, razors; hunting knives” in Class 8 and “household or kitchen utensils and containers; glassware, porcelain and earthenware not included in other classes” in Class 21. On appeal, Applicant Creation Power argued that because the “‘Copenhagen style’ is well-understood in design,” the mark does not refer to the “geographic location itself” so as to deceive consumers. The Board was unconvinced and unanimously affirmed the refusals to register. In re Creation Power Limited, Serial Nos. 87229478 & 87229760 (June 19, 2019) [not precedential] (Opinion by Judge David K. Heasley).


Section 2(e)(3) prohibits registration of a mark that, “when used on or in connection with the goods of the applicant is primarily geographically deceptively misdescriptive of them.” Marks that meet the following four criteria are barred from registration:

(1) The primary significance of the mark is a generally known geographic place;
(2) The goods or services do not originate in the place identified in the mark;
(3) Purchasers would be likely to believe that the goods or services originate in the geographic place identified in the mark; and
(4) The misrepresentation would be a material factor in a substantial portion of the relevant consumers’ decision to buy the goods or use the services.

In re Compania de Licores Internacionales S.A., 102 U.S.P.Q.2d 1841, 1843 (TTAB 2012); TMEP § 1210.05(b) (Oct. 2018).

The first two elements undoubtedly cut against Applicant. The Board stated, “Under the first element of the Section 2(e)(3) refusal, it is undisputed that the primary significance of Applicant’s mark is that of a generally known geographic location, Copenhagen.” In terms of the second element, Applicant conceded that “its identified goods do not originate from Copenhagen.”


Regarding the third element, demonstrating “the goods-place association often requires little more than a showing that the consumer identifies the place as a known source of the product.” In re Les Halles De Paris J.V., 334 F.3d 1371, 67 U.S.P.Q.2d 1539, 1541 (Fed. Cir. 2003). The Examining Attorney submitted persuasive evidence “showing that Copenhagen is a known source of designer cutlery, tableware, glassware, porcelain ware and dinnerware products―all of which are part of Copenhagen’s broader reputation as a design capital.” For example, the late Anthony Bourdain described Copenhagen as “probably the center of the designer goods universe . . . Copenhagen is rich with design-led stores selling trendy lights, ingenious kitchenware, cheerful home furnishings and exquisite glass and ceramics.” In particular, he referenced Royal Copenhagen, whose well-known blue and white hand-painted dinnerware is shown below.



The Board found that this evidence was sufficient to establish a prima facie goods-place association. Applicant failed to rebut this showing and prove that “the public would not actually believe the goods derive from the geographic location identified by the mark.” In re Save Venice N.Y., Inc., 259 F.3d 1346, 59 U.S.P.Q.2d 1778, 1783 (Fed. Cir. 2001). Applicant did not successfully provide any evidence supporting its position that the “Copenhagen” or Nordic style of products was well-known internationally and that consumers would interpret the mark accordingly.

Finally, the Board concluded that the Examining Attorney established materiality (i.e. that a “substantial portion of relevant consumers is likely to be deceived by the mark’s misrepresentation of a goods/place association.”) In re Miracle Tuesday, LLC, 695 F.3d 1339, 104 U.S.P.Q.2d 1330, 1334 (Fed. Cir. 2012) (quoting In re Spirits Int’l N.V., 563 F.3d 1347, 90 U.S.P.Q.2d 1489, 1493 (Fed. Cir. 2009)). Again, Applicant contended that consumers would recognize a “Copenhagen style” and would not automatically assume that the goods emanate from Copenhagen. The Board stated that, in line with past appeals, this “style” argument does little to counter the materiality of a geographic designation. The Board reiterated that an association between a place and a particular style “may be made precisely because of the primary significance” of a term as a location. In re Wada, 48 U.S.P.Q.2d 1689, 1691 n.5 (TTAB 1998). Hence, all four elements supported the Examining Attorney’s position, and the Board agreed that the mark was primarily geographically deceptively misdescriptive under Section 2(e)(3).

Practice Tip: While Applicant had attached three exhibits to its appeal brief, the Board would not consider them. Per 37 CFR § 2.142(d), “exhibits attached to a brief that were not made of record during examination are untimely, and will not be considered.” Nonetheless, the Board noted that in this case, even if the exhibits had been considered, they would not have affected the outcome.

Read comments and post your comment here.

Text Copyright Amanda B. Slade 2019.

posted by John L. Welch @ 6/27/2019   2 comments

Wednesday, June 26, 2019

TTABlog Test: Can the Pattern Made by a Snow Groomer be a Trademark for the Machine?

In one of the more interesting cases in recent memory, the Board rendered a split decision regarding registrability of the "design" shown immediately below, for snow groomers. The mark consists of the particular pattern made in the snow by the groomers. The Board found the design not to be de jure functional, but it upheld the refusals to register based on Applicant TrackFin's failure to submit an acceptable specimen of use and on lack of acquired distinctiveness. In re TrackFin GmbH, Application Serial No. 86175623 (June 17, 2019) [not precedential] (Opinion by Judge Marc A. Bergsman).


Specimens of Use: TrackFin's original specimens of use were four photographs of the grooming machine making the claimed pattern in the snow, but the photos did not show the mark applied to the machines, or packaging therefor, or as displays associated with the goods. Subsequently, applicant submitted a user's guide (which might be acceptable), but the guide did not display the applied-for mark. Finally, TrackFin submitted a photo from a trade show exhibit, but again the photo did not display the applied-for mark, nor did TrackFin's video evidence. And so the Board affirmed the refusal based on the lack of proper specimens of use.

Applicant TrackFin's trade dress

Distinctiveness: The Board observed that the proposed mark is not a product configuration; it is groomed snow and sand resulting from use of the product identified in the application. "Nevertheless, '[i]t is the source-distinguishing ability of a mark - not its ontological status as color, shape, fragrance, word, or sign -that permits it to serve these basic purposes [source indication].'" Qualitex, 34 USPQ2d at 1163.

TrackFin sought registration under Section 2(f), thus conceding the lack of inherent distinctiveness. The Board noted that applicant had a heavy burden because the snow pattern is a nontraditional mark.

TrackFin submitted nine declarations from persons in the grooming industry, but none of them included or referenced a depiction of the applied-for mark. Their descriptions of the mark varied and the lack of clarity regarding the mark undermined the persuasiveness of the declarations. It wasn't even clear that the declarants understood that the subject matter of the mark was the design impression made in the snow.

TrackFin has "used" the mark for at least 20 years, but of course that fact alone does not establish distinctiveness.  The examining attorney identified other patterns of groomed snow produced by applicant's competitors, including ones with an equally sized and spaced "corduroy" design. In light of these designs, the Board concluded that TrackFin's use of the proposed mark was not substantially exclusive.

Although TrackFin spent $100 million in advertising its vehicles over the past five years and garnered sales of $350 million, it did not show that this effort translated into consumer recognition of the track pattern as a trademark.

The Board concluded, especially in light of the similar tracks created by the products of competitors, that "consumers are not likely to perceive the snow track to be anything other than a non-source identifying design the grooming vehicle leaves behind."

TrackFin's Operator's Guide

De Jure Functionality: The Board reviewed one utility patent and two applications for snow groomer equipment but found that none of them disclosed any utilitarian advantage arising from the use of the applied-for mark. TrackFin's advertising did not tout any functional benefits of using the pattern. TrackFin conceded that there are few alternative designs, and so this factor weighed against it. Finally, there was no evidence that the design resulted from a comparatively simple or inexpensive method of manufacture, and thus TrackFin derived no competitive advantage from the design.

The Board recognized that grooming the snow makes it easier to see and to traverse, but it found no evidence that this particular pattern offered any benefit over other patterns of groomed snow. And so it concluded that the applied-for design is not de jure functional.

Read comments and post your comment here.

TTABlog comment: I guess the shape of a groomed snow track qualifies as tertium quid, since it's not packaging or product design.

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/26/2019   1 comments

Tuesday, June 25, 2019

Precedential No. 15: HEALTHPLANS.COM Generic for Health Insurance Advertising Services, Not for Online Software for Tracking Advertising

In an enervating 22-page opinion, the Board rendered a split decision in this appeal from a genericness refusal of the service mark HEALTHPLANS.COM (in standard character form), for advertising services in the field of medical and life insurance (class 35) and online software services for tracking, administration, billing, and reporting of advertising (class 42). The Board affirmed the class 35 refusal under Section 23(c) but reversed the class 42 refusal. In re Katch, LLC, Serial No. 86301765 (June 20, 2019) [precedential] (Opinion by Judge Peter W. Cataldo).


Applicant Katch sought registration on the Supplemental Register. The Board observed that “[i]n order to qualify for registration on the Supplemental Register, a proposed mark ‘must be capable of distinguishing the applicant’s goods or services.”’ In re Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089 (TTAB 2017) (quoting 15 U.S.C. § 1091(c)). Generic terms do not qualify for such registration because “by definition [they] are incapable of indicating a unique source.” In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1267 (Fed. Cir. 2015).

In Marvin Ginn, the CAFC formulated a two-step inquiry to determine whether a term is generic: First, what is the genus (category or class) of goods or services at issue? Second, is the term sought to be registered understood by the relevant public primarily to refer to that genus of goods or services? ,  The relevant public’s perception is the chief consideration in determining whether a term is generic. See Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1833 (Fed. Cir. 2015). “[A] term can be generic for a genus of goods or services if the relevant public … understands the term to refer to a key aspect of that genus.” Royal Crown, 127 USPQ2d at 1046 (quoting Cordua, 118 USPQ2d at 1637).

As to the first step of the Marvin Ginn test, the genus may be defined by the services identified in the application. See Reed Elsevier, 82 USPQ2d at 1380; Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (a proper genericness inquiry focuses on the identification set forth in the application or certificate of registration).

Class 35: For the class 35 services, the application, and thus the genus, includes “Insurance lead collection and matching services, namely, matching consumer requests for insurance policy quotes collected over the Internet to pre-qualified insurance brokers, agents and agencies interested in those requests.” The record evidence confirmed that Applicant Katch's services are in the health insurance field, and its website indicated that "health plans are an integral aspect of Applicant’s services." Even though "health plans" are not expressly included in the recitation of services, they are still included in the relevant genus. See DNI Holdings, 77 USPQ2d 1435 (TTAB 2005) (despite applicant’s omission of sports wagering from its recitation of services for the term SPORTSBETTING.COM, apparently to avoid a finding of genericness, “the relevant genus of services herein includes wagering on sporting events.” Id. at 1439); see also Reed Elsevier, 82 USPQ2d at 1380 (affirming the Board's finding that applicant’s provision of information regarding the law, legal news, and legal services included the provision of information about lawyers despite the deletion of those services from applicant's recitation.).

As to the second prong of the Marvin Ginn test, the Board found that the relevant consumers are health insurance providers as well as members of the general public who are seeking health insurance from providers. Examining Attorney Susan A. Richards submitted dictionary definitions of "health plan" and "health care," excerpts from Applicant Katch's own website, media references concerning applicant, and LexisNexis articles and screenshots of third-party health insurance providers using the term "health plans."

The record in this case clearly shows that “health plan(s)” is a common term that means an organized format for delivering health care insurance. It has been used generically on Applicant’s website ... (e.g., “Find the Right Health Plan For You”), to indicate organized methods or formats for delivering health insurance.

As to the suffix ".com," only in exceptional circumstances will the addition of this TLD to a generic or descriptive term add source-identifying significance and transform an otherwise non-distinctive combination into a registrable mark. Hotels.com, 91 USPQ2d at 1304 (noting that “registrability does not depend on the .com combination”); In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1422 (Fed. Cir. 2005) (“Only in rare instances will the addition of a TLD indicator to a descriptive term operate to create a distinctive mark.”) (citing In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1374 (Fed. Cir. 2004) (“When examining domain name marks, the PTO must evaluate the commercial impression of the mark as a whole, including the TLD indicator. The addition of a TLD such as ‘.com’ or ‘.org’ to an otherwise unregistrable mark will typically not add any source identifying significance, similar to the analysis of ‘Corp.’ and ‘Inc.’”)).

The Board found that here, the TLD ".com" is "no more than a designation of commercial entity, like the word 'Company,' because it does not expand the meaning of 'health plan(s)' beyond an organized format for delivering health insurance. A corporate identifier is without source-identifying capability."  See, e.g., Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602 (1888); In re Wm. B. Coleman Co., 93 USPQ2d 2019, 2025 (TTAB 2010); In re Cell Therapeutics Inc., 67 USPQ2d 1795 (TTAB 2003).

Based upon the record evidence, the Board found that "relevant consumers would understand HEALTHPLANS.COM as denoting a commercial website for finding and being matched with available health plans, and thus as referring to the genus of Applicant’s Class 35 services." Therefore it concluded that the applied-for mark is generic for the Class 35 services "or at least a key aspect of them, namely, providing access to health insurance plans – or health plans – over the Internet." See Cordua, 118 USPQ2d at 1638 (explaining that “the term ‘pizzeria’ would be generic for restaurant services, even though the public understands the term to refer to a particular sub-group or type of restaurant rather than to all restaurants”).

Because the term is generic for at least some of the services under the proposed mark in Class 35, it is unregistrable as to the entire class. See In re Analog Devices Inc., 6 USPQ2d 1808, 1810 (TTAB 1988), aff’d, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989) (unpublished).

Class 42: Turning to the Class 42 services, the relevant purchasers are insurers. Advertising is the focus of these services, and they "appear to be ancillary to, rather than an integral part of, providing health insurance."

Viewed in its entirety, the evidence of record indicates that HEALTHPLANS.COM in the context of these services merely describes a feature or characteristic of the services, but falls short of clearly demonstrating that insurers seeking to track, administer, bill and report advertising over the Internet in the field of health insurance will understand HEALTHPLANS.COM to refer to the genus of Applicant’s Class 42 services.

Therefore the Board reversed the genericness refusal as to the class 42 services.

Read comments and post your comment here.

TTABlog comment: Any quarrel with this one?

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/25/2019   1 comments

Monday, June 24, 2019

TTABlog Test: Is “RUFF CHEWERS” for Dog and Pet Toys Confusable with “RUFF CHEW (Stylized)” for Pet Beds?

[This guest post was written by Kira-Khanh McCarthy, a rising-3L at University of Notre Dame Law School.] The USPTO refused to register the mark RUFF CHEWERS, in standard characters (CHEWERS disclaimed), for dog and pet toys, finding the mark likely to cause confusion with the registered mark RUFF CHEW, in the stylized form shown below, for pet beds. On appeal, Applicant convinced the Board of one of the following arguments: (1) that the marks are distinguishable, (2) that consumers of the products are highly sophisticated, (3) that the registered mark is weak, (4) that the registered mark does not currently appear to be used in commerce, or (5) that the USPTO has allowed similar pairs of marks to co-exist on the Principal Register. Which do you think the Board found disfavored a finding of likelihood of confusion? Do you think it outweighed the remaining du Pont factors? In re Lavelle Industries, Inc., Serial No. 87420189 (June 12, 2019) [not precedential] (Opinion by Judge Angela Lykos).


The Marks: Applicant argued that the registered mark’s stylized font, design element, and color scheme distinguish the marks. Focusing on the literal portion of the marks, the Board noted that the only distinction was Applicant’s addition of the suffix “-ers.” Accordingly, “the presence of the common design element consisting of a brown rectangle enclosing the stylized wording ROUGH CHEW fail[ed] to mitigate the similar sound, appearance, and connotation of the marks.” Applicant also specified that it had no intention to use its mark in a similar stylization. However, since the applied-for mark was in standard character form, the Board found this point to be irrelevant. Thus, the first du Pont factor weighed in favor of finding a likelihood of confusion.

The Goods and Trade Channels: Here, the Board considered the goods to be complementary, observing that the “products may be used together for pets who take their toys to bed.” Turning to internet evidence presented by Examining Attorney Rachael Dickson, the Board determined that many online retailers sell both goods under the same mark. Therefore, “[c]onsumers may expect to find both Applicant’s and Registrant’s goods emanating from a common source.” The Board then found that the goods traveled in similar trade channels based on evidence of web sites specializing in pet care and animal products and common knowledge that brick-and-mortar pet stores would sell both pet toys and beds. And so, the second and third du Pont factors weighed in favor of finding a likelihood of confusion.

Conditions of Sale: Applicant asserted that the goods offered by both parties are not impulse purchases and that consumers exercise a high degree of care when buying pet products. Specifically, Applicant maintained: “millennials care deeply about their pets and consider them ‘starter children,’ making these consumers are [sic] ‘very discriminating and discerning purchsers [sic] of pet products.’” The Board rejected this argument, pointing out that caring deeply about pets does not immunize consumers from source confusion. Looking to the record, the Board found that pet beds and toys can be sold for a relatively low price, citing a travel dog bed with a retail price of $19.39 and a ball dog toy for $7.99-$8.95. Because the goods can be sold for a low price, consumers are not likely to deliberate over their purchases, and therefore the Board found this factor weighed in favor of finding a likelihood of confusion.

Strength of the Cited Mark: Here, Applicant provided Google search results of “ruff chew bed.” The Board observed that “[a] search result summary from a search engine, such as . . . Google, which shows use of a phrase as key words by the search engine is of limited probative value.” See TBMP § 1208.03. Nonetheless, the Board gave the search engine results probative weight since the summary provided sufficient information to understand the context of the words’ usage. Additionally, Applicant submitted seven active third-party registrations as evidence that the words “rough” and “chew” are relatively weak in connection with dog and pet toys. Taking all of the evidence into account, the Board agreed that the registered mark is relatively weak. Therefore, the sixth du Pont factor disfavored a finding of likelihood of confusion.

Other Factors: Finally, Applicant argued that Registrant’s mark does not currently appear to be used in commerce and also that the USPTO has allowed four similar pairs of marks to co-exist on the Principal Register. The Board promptly dismissed these arguments, finding them irrelevant in an ex parte proceeding and of limited utility. Accordingly, the Board found the thirteenth du Pont factor to be neutral.

Conclusion: Finding that the weakness of the registered mark did not outweigh the other relevant du Pont factors, the Board affirmed this Section 2(d) refusal to register.

Read comments and post your comment here.

KKM comment: Looks like the Board wasn’t willing to throw Applicant a bone in this case.

Text Copyright Kira-Khanh McCarthy and John L. Welch 2019.

posted by John L. Welch @ 6/24/2019   1 comments

Friday, June 21, 2019

TTAB Affirms Failure-to-Function Refusal of "I ♥ PGH ART & Design" for Retail Store Services

The Board affirmed a refusal to register the mark shown immediately below on the ground that it fails to function as a service mark for "Retail store services featuring handmade artisan products in the nature of original artwork in a wide variety of mediums; online retail store services featuring handmade artisan products in the nature of artwork in a wide variety of mediums." The Board concluded that the proposed mark "will be perceived by customers as ... merely a slight variation of [a] common phrase expressing support that, more specifically, indicates an affinity for the city of Pittsburgh arts community. In re The Artsmiths, LLC, Serial No. 8715177 (June 17, 2019) [not precedential] (Opinion by Judge Thomas W. Wellington).


The Board observed that "not every word or symbol which appears in connection with an entity's services functions as a services mark." The question is whether the phrase identifies the source of the services or whether it would be perceived merely as communicating the ordinary meaning of the words to consumers. See In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1152 (TTAB 2019) (INVESTING IN AMERICAN JOBS found to be a merely information phrase).

Examining Attorney April Reeves asserted that consumers are accustomed to "I [heart] PGH"  and "PGH ART" being used in everyday speech, and therefore they would perceive the phrase not as a trademark but as an informational message expressing support for the Pittsburgh art scene. She submitted evidence of third party use of "I [a heart shape] PGH," and evidence that Pittsburgh has a known art scene.


The Board found that the evidence "clearly shows that uses of 'I [heart-shape design] PGH' will be clearly understood as an expression of support for the city of Pittsburgh." The record evidence further showed that Pittsburgh has a thriving arts community, referred to by third parties as "PGH Art(s)."

Applicant Artsmiths argued that there was no evidence of third-party use of  "I [heart] PGH ART" or "I [heart] Pittsburgh Art." The Board, however, pointed out that this is not determinative of how the public will perceive the phrase.

The evidence shows that “I [heart] PGH” is a fairly common phrase that will be immediately understood as merely expressing an affinity for the city of Pittsburgh. The addition of ART to this phrase merely extends or narrows this expression of support to the Pittsburgh art scene. The evidence also shows Pittsburgh has a celebrated arts community that is sometimes referred to as “PGH ART(S)” – thus the phrase “I [heart] PGH ART” will be perceived as a pronouncement of admiration for that community. In the context of Applicant’s retail store services featuring the sale of handmade artwork that includes works from artisans of Pittsburgh, consumers’ previous exposure to “I [heart] PGH” and “PGH ART(S)” will predispose them to viewing the proposed mark “I [heart] PGH ARTS” as merely an expression of the store’s support for the Pittsburgh arts community.

The Board concluded that Applicant's specimen of use of the proposed mark (below) enhanced the likelihood that the logo would be perceived as merely informational because the logo is "removed from the description of applicant's retail services and more closely associated with written matter that gives information about the arts and cultural center as a whole." The Board agreed with Examining Attorney April Reeves that consumers would view the logo as a message of enthusiasm for Pittsburgh arts and artists.


Finally, the Board noted applicant's reliance on 29 third-party registrations for marks containing the "I [heart]" term with additional matter. Many of the marks contained additional matter, like a design of a hot dog. More than half of the registrations involve the mark "I [heart] NY" and are owned by New York State. The Board was unmoved, once again pointing out that each case must be decided on its own facts and record, and the Board is not bound by the decisions of examining attorneys on different records.

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: I guess the State of New York was fortunate to get its registrations before the USPTO went on the warpath with its failure-to-function refusals. So forget about trying to register "I [heart] TTAB."

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/21/2019   0 comments

Thursday, June 20, 2019

TTABlog Test: Is FRANCIEPANTS for Undergarments Confusable with FRANCY for Skirts?

[This guest post was written by Stephanie Grace Stella, an associate in the Trademark Group at Wolf, Greenfield & Sacks, P.C.] The USPTO refused to register the mark FRANCIEPANTS (standard characters) for "undergarments," deeming the mark likely to cause confusion with the registered mark FRANCY (standard characters) for "skirts." The Examining Attorney found that the dominant portion of Applicant’s mark is aurally similar to Registrant’s mark, the goods are closely related, and the channels of trade and classes of consumers overlap. On appeal, Applicant contended that FRANCIEPANTS is a unitary expression with a "completely distinct" commercial impression from that of FRANCY. How do you think this came out? In re Wasser, Serial No. 87487916 (June 7, 2019) [not precedential] (Opinion by Judge Linda A. Kuczma).


 Similarity of the goods and trade channels/consumers: The Examining Attorney contended that Registrant’s and Applicant’s goods were closely related and travel through overlapping trade channels to the same classes of consumers. He relied on evidence in the form of (1) websites of recognized clothing brands advertising both skirts and undergarments being offered under the same mark, (2) “eight third-party registrations of marks for goods that are identical or very similar to those of Registrant and Applicant,” and (3) “website articles encouraging women to consider the type of undergarments to wear with skirts.” In response, Applicant (1) cited the Board’s decision in H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1729 (TTAB 2008), where the Board dismissed an opposition in view of the dissimilarity of the marks and goods, and (2) contended that consumers would never encounter both parties’ marks in the marketplace because “her exclusive trade channel is her website; she has never sold goods in any brick-and mortar retail establishments.”

The Board rejected Applicant's arguments, finding that the Examining Attorney’s website and third-party registration evidence supported a finding that Registrant’s and Applicant’s goods are closely related, and that consumers are accustomed to seeing skirts and undergarments offered for sale under the same marks by the same mark owner. With respect to third-party registrations, the Board noted:

While third-party registrations are not evidence that the marks shown therein are in commercial use, or that the public is familiar with them, such registrations that individually cover a number of different items and are based on use in commerce have probative value to the extent that they serve to suggest that the listed goods are of a kind that may emanate from a single source under a single mark.

The Board distinguished the Maidenform case cited by the Applicant on the ground that, in Maidenform, the opposer—unlike the Examining Attorney in this case—failed to introduce any evidence or make any arguments that opposer’s clothing was related to applicant’s undergarments. The opposer thus failed to meet its burden of proving that the parties’ goods were related. The Board also rejected Applicant’s attempt to distinguish the parties’ trade channels and consumers, reasoning that “[b]ecause there are no limitations as to channels of trade in the recitation of goods in either Applicant’s application or the cited Registration, we must presume that the identified goods move in all channels of trade normal for such goods.” The Board therefore concluded that the second and third du Pont factors favored the USPTO.

Similarity of the marks/commercial impression: Citing the Federal Circuit’s decision in Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1160 (Fed. Cir. 2014), the Board noted that similarity of any one of “appearance, sound, connotation and commercial impression . . . may be sufficient to find the marks confusingly similar.” The Examining Attorney and Applicant agreed that both “Francy” and “Francie” are nicknames for “Frances.” The Applicant argued, however, “that the Examining Attorney fundamentally misconstrue[d] the commercial impression and connotation of her mark” as a whole because FRANCIEPANTS “is a creative play on the combination of her nickname ‘Francie’ together with the ‘fancy-pants’ expression, whereas the term ‘Francy’ in the cited Registration ‘is not used in a broader branding or marketing manner, but rather as a descriptor or identifying name of one particular type of denim skirt.’” The Applicant further argued that FRANCIEPANTS is a unitary expression such that the FRANCIE portion of her mark “cannot be separated from the [PANTS] portion and treated as a dominant or independent piece with a stand-alone impression when the suggestive nature of the mark inherently involves the entire phrase holistically.”

The Board agreed with Applicant that her mark “is a creative play on the colloquial expression ‘fancy-pants’ resulting from the combination of her nickname with the word ‘pants’” and thus “is a unitary mark that has a different meaning and connotation from [and thus] a different, distinct commercial impression from the cited mark.” The Board therefore concluded that “[t]his key [first du Pont] factor weighs strongly against a finding of likelihood of confusion.”

Conclusion: Weighing the du Pont factors, the Board ruled that the similarity of the goods and trade channels/consumers were “outweighed by the dissimilarity of the marks due to their different commercial impressions.”

And so the Board reversed the refusal to register.

Read comments and post your comment here.

SGS comment: Do any of you find that the oral similarity of FRANCY and FRANCIE should have tipped the scale in favor of affirmance?

Text Copyright Stephanie Grace Stella and John L. Welch 2019.

posted by John L. Welch @ 6/20/2019   2 comments

Wednesday, June 19, 2019

Precedential No. 14: Cross-Examination of US-Based Testimony Declarant Must be by Oral Deposition, Not Written Questions, Says TTAB

In this cancellation proceeding involving a registration for the mark CAPTAIN CANNABIS for comic books, the Board faced the question of whether a witness located in the United States, whose testimony was submitted by affidavit or declaration under Rule 2.123(a)(1), may be cross-examined by written questions. No, said the Board, only by oral cross-examination. Laverne J. Andrusiek v. Cosmic Crusaders LLC, 2019 USPQ2d 222984 (TTAB 2019) [precedential] (Order by Interlocutory Attorney Yong Oh (Richard) Kim)).


Petitioner Andrusiek moved for leave to take the cross-examination of two witnesses, both located in the United States, on written questions. He pointed to the expense and inconvenience of oral depositions because the witnesses were in Tampa, Florida, while petitioner is located in the State of Washington.

In opposition to the motion, Respondent Cosmic Crusaders relied on Rules 2.123, and 2.124, which do not provide for cross-examination by written questions. The Trademark Rules allow a party to “take” direct testimony by submitting an affidavit or declaration or by oral examination under Rule 2.123, or by written questions under Rule 2.124. As for cross-examination, the proper procedure differs depending on the location of the witness.

Where, as here, testimony is presented by affidavit or declaration, Trademark Rules 2.123(a)(1) and (a)(2) make clear that the methods of cross-examination permitted depend on where the witness is located. “[I]f such witness is within the jurisdiction of the United States,” any adverse party may “take ... oral cross-examination of that witness ....” Trademark Rule 2.123(a)(1). “[I]f such witness is outside the jurisdiction of the United States,” any adverse party may “conduct cross-examination by written questions as provided in § 2.124 ....” Id.

Addressing Andrusiek’s concern about expense, the Board noted that the Rules do not require that oral cross-examination be conducted in person. It may be conducted by telephone or other remote means either through stipulation or on motion for good cause. See Fed. R. Civ. P. 30(b)(4). "[N]othing in the language of Rule 30 requires a showing of necessity, financial inability or other hardship to obtain an order to proceed via telephone, ... leave to take telephonic depositions [is] liberally granted in appropriate cases." Hewlett-Packard Co. v. Healthcare Pers. Inc., 21 USPQ2d 1552, 1553 (TTAB 1991). The Board construed Petitioner Andrusiek's motion as, alternatively, seeking leave to take oral cross-examination by telephone or other remote means.

Since it is Respondent who has insisted on oral cross-examination, the Board sees neither harm nor prejudice to Respondent in permitting Petitioner to conduct such cross-examination by remote means should Petitioner elect to do so.

Finally, the Board pointed out that respondent will bear the expense of producing the witness, but petitioner must schedule and bear the expense of the court reporter. See Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 24 USPQ2d 1160, 1166-67 (TTAB 2017). Redirect or recross must be taken at the same time as the cross-examination.

Read comments and post your comment here.

TTABlog comment: Depositions by written questions are pretty useless anyway

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/19/2019   0 comments

Tuesday, June 18, 2019

WYHA? IZAKAYA KOPAN RAMEN & Design Confusable with KOPAN for Restaurant Services, Says TTAB

The Board affirmed a refusal to register the mark IZAKAYA KOPAN RAMEN & Design (shown below) for restaurant services [IZAYAKA and RAMEN disclaimed], finding a likelihood of confusion with the registered mark KOPAN for, inter alia, restaurant services. Applicant Chang argued that the parties' respective restaurants differ dramatically in style of food and atmosphere, but the Board pooh-poohed that argument, observing that there are no such limitations in the application or cited registration. In re Chang, Serial No. 87503270 (June 12, 2019) [not precedential] (Opinion by Judge Lorelei Ritchie].


Since the involved services are "legally identical," they are presumed to travel in the same channels of trade to the same class of consumers. These factors "weigh heavily in favor of a finding of  likelihood of confusion."

Applicant stated that the word KOPAN has no significance, nor is it a term of art in the relevant field. He noted that KOPAN does not have a relevant translation in Korean, Chinese, or Japanese. His appeal brief stated that "it has recently come to light that KOPAN as used in the mark is a fanciful term that combines the words Korea and Japan." He offered no evidence in support of that assertion, and in any case his argument that KOPAN is "fanciful" was of no help to his cause. Even if KOPAN is suggestive, it is still inherently distinctive and protectable.

As to the marks, Applicant Chang conceded that "izayaka" means "gastropub" in Japanese and that "ramen" is descriptive of the food items on the menu. Both words were disclaimed by Chang, and therefore these two words have less significance in the Section 2(d) analysis. The design of a bowl with chopsticks merely emphasizes the literal element in the applied-for mark. Since the mark in the cited registration is in standard character form, it could be presented in the same size, font, and color as applicant's mark.

The Board found that the marks have the same connotation and commercial impression. "To the extent consumers may understand the term 'KOPAN' as completely fanciful, Applicant's mark may be perceived as an extension of Registrant's restaurant services." Of course, when the services are identical, as here, a lesser degree of similarity in the marks is necessary to support a finding of likely confusion.

Balancing the relevant du Pont factors, and concluding that the marks are "similar in sight and sound and especially in connotation and commercial impression," the Board affirmed the Section 2(d) refusal to register.

Read comments and post your comment here.

TTABlog comment: To me, "kopan" seems to describe a method of cooking wherein one uses two pans side-by-side. But we know that side-by-side comparison is not the proper test under Section 2(d). So nevermind.

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/18/2019   1 comments

Monday, June 17, 2019

TTAB Sustains Opposition to MEZQUILA for Alcoholic Beverage, Finding No Bona Fide Intent

The Board sustained this opposition to registration of the mark MEZQUILA for "alcoholic beverages except beer," finding that "Applicant's intent at the time they filed their application was merely to reserve a right in the MEZQUILA mark in case they decided to begin developing an associated product at some future time." Los Santos, LLC v. Johnny D. Gabriel and Rosalie Gabriel, Opposition No. 91223574 (June 20, 2019) [not precedential] (Opinion by Judge Susan J. Hightower).


The inquiry as to bona fide intent is "not into Applicant's subjective state of mind alone." Rather, the determination must be made objectively, based on evidence in the form of "real life facts" and "the actions of the applicant." There must be "a good faith intention to eventually use the mark in a real and legitimate commercial sense."

The Board noted Rosalie Gabriel's testimony that she was unaware of any efforts she herself made with regard to MEZQUILA at any time. The Board found it unnecessary to decide whether the lack of bona fide intent by one of two joint applicants renders the application invalid, because it concluded that her co-applicant and husband, Johnny D. Gabriel, also lacked a bona fide intent to use the mark in commerce.

Lack of Documentary Evidence: An opposer may establish a prima facie case of lack of bona fide intent by establishing that the applicant has no documentary evidence to support its claim. The burden of production then shifts to the applicant to come forward with evidence "adequately explaining or outweighing the failure to provide such documentary evidence."

The subject application was filed on January 29, 2015. The earliest documents provided by applicants were dated November 2015. The fact that these documents were created well after the filing date is not dispositive of the issue, since such documentation may corroborate the claim of a bona fide intent to use the mark as of the filing date.

Here, however, no documents preceded the filing date of the notice of opposition (August 31, 2015). Moreover, regarding the application, Mr. Gabriel testified that "I thought that it would be a good idea to have it [MEZQUILA] trademarked as a brand name in case I wanted to bring in my own Tequila" [to his retail stores]. And applicants filed an I-T-U application in 2000 for the same mark, which application went abandoned after they failed to file a statement of use, suggesting that "Applicants had the idea to use the term for many years but had not done so." [In a footnote, the Board quoted Mr. Gabriel: "I have never distilled or produced tequila in my life."].

Under the circumstances, the Board concluded that "no documentary evidence supports an objective bona fide intent to use the mark in commerce as of the application filing date." The burden of production therefore shifted to applicants to provide evidence overcoming opposer's prima facie case.

Applicant's evidence of bona fide intent: Applicant's argued that Mr.Gabriel 82 years old) does business "the old fashioned way:" over the phone or in person, without texts of emails. Mr. Gabriel testified that he met with two distilleries in February 2015 and traveled to Mexico in September 2015 to visit another distillery, regarding the MEZQUILA product. Not good enough, said the Board.

This record at most supports a finding that Applicants had two meetings within seven months after the application was filed in which inquiries concerning distillation of a MEZQUILA product were raised and immediately dropped. Considering all the record evidence, we find that these meetings do not explain or outweigh Applicant' failure to provide persuasive documentary evidence of an objective intent to use the mark MEZQUILA in commerce as of the application filing date in January 2015.

In November 2015, applicants took steps that resulted in their offering MEZQUILA brand tequila in retail liquor stores in 2017. The Board, however, found that "these goods were offered in an attempt merely to reserve a right in the MEZQUILA mark rather than in the ordinary course of trade."

These sales produced no income for applicants or their business partners. Johnny Gabriel received no royalties from the distillery or the importer/distributor. The distiller testified that he entered into the agreement as a favor to Gabriel because the latter wanted "to be sure that the trademark belongs to him."

Conclusion: The Board found that opposer had established by a preponderance of the evidence that applicants lacked a bona fide intent to use the MEZQUILA mark as of the application filing date, and so it sustained the opposition.

Read comments and post your comment here.

TTABlog comment: Opposer sells its product under the SANTO mark, and its application to register SANTO MEZQUILA was blocked by the application here challenged. The Board declined to reach opposer's claims of genericness, mere descriptiveness, geographically deceptive misdescriptiveness, and deceptive misdescriptiveness.


Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/17/2019   0 comments

Friday, June 14, 2019

TTABlog Test: Is PRINCE KONG for Games and Toys Confusable with KING KONG & Design for Toys and KING KONG (Stylized) for Bicycles?

[This guest post was written by Kira-Khanh McCarthy, a rising-3L at University of Notre Dame Law School.] Examining Attorney Alison Keeley refused registration of the mark PRINCE KONG (in standard characters) for, inter alia, games, toys, and elbow pads and guards, finding the mark likely to cause confusion with the registered marks KING KONG & Design (below left) and KING KONG (Stylized) (below right) for toys and for bicycles and body protectors for bicycle sports, respectively. On appeal, Applicant contended that the registered KING KONG marks are weak and deserved a narrow scope of protection, and that “PRINCE” and “KING” have distinct enough meanings that consumers would be readily able to differentiate between them. Do you think the Board was convinced by these arguments? In re Shin-Kyu Choi, Serial No. 87386932 (June 7, 2019) [not precedential] (Opinion by Judge Robert H. Coggins).


Similarity of the Goods, Channels of Trade, and Classes of Customers:

The Board determined that Applicant’s goods are “identical or legally identical to the goods in the registrations” and therefore it quickly presumed that the channels of trade and classes of purchasers are the same. Applicant did not appear to challenge this issue. This factor weighed in favor of finding for confusion.

 Strength of the Registered Marks:

Applicant strongly disputed the strength of the registered marks, alleging that the terms KING KONG and KONG are extensively used in the marketplace and are thus are diluted and weak terms. As evidence, Applicant cited third-party registrations and also pointed to statements made by the First Registrant during prosecution which alluded to the weakness of KING KONG. The Board rejected both of these arguments. Firstly, Applicant fell short of a successful “crowded field” argument: “[i]n this case there is no evidence of third-party usage, there is only a handful of third-party registrations – only two of which contain the full literal element of the cited mark [and] [t]hose two third-party registrations are not for the same goods identified in either cited registration.” Secondly, the Board noted that a “party’s earlier contrary opinion may be considered relevant and competent” to a limited extent, but that it is no substitute for the Board reaching its own ultimate conclusion. See Interstate Brands, Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 154 (CCPA 1978). Accordingly, the Board found this factor to be neutral.

 Similarity of the Marks:

Applicant did not dispute the assertion that the words “KING KONG” are the dominant element of each mark. However, it did argue that “PRINCE” and “KING” have separate meanings and are consequently dissimilar. The Board rejected this argument, maintaining that: "[t]he marks have the same structure: two words, the second being KONG . . . they share the commonly placed second word KONG which is preceded by the title of a royal male (i.e., either KING or PRINCE) . . . [and] the marks share not only a royal connotation but a direct familial relationship."

Applicant conceded that KING KONG is a famous and iconic character featured in the film of that name and in many sequels. The Board noted that in "Son of Kong," "the character King Kong had a son - known as a prince."

Finding more similarities than differences between the marks, the Board found that this factor weighed in favor of finding of likely confusion.

Conclusion:

Balancing the relevant du Pont factors, the Board found confusion likely and it affirmed the Section 2(d) refusal.

Read comments and post your comment here.

TTABlog comment:  The stylized version seems like an optical illusion. Sometimes I see it as KING KONG, sometimes not.

Text Copyright Kira-Khanh McCarthy and John L. Welch 2019.

posted by John L. Welch @ 6/14/2019   1 comments

Thursday, June 13, 2019

Recommended Reading: NYU Law Professors Beebe and Fromer, "Immoral or Scandalous Marks: An Empirical Analysis"

Professors Barton Beebe and Jeanne C. Fromer of New York University School of Law have published a new article on Section 2(a) "immoral or scandalous" refusals: "Immoral or Scandalous Marks: An Empirical Analysis," N.Y.U. Journal of Intell. Prop. & Ent. Law, Vol. 8, No. 2 (Spring 2019). (link here). The article reports the results of a "systematic empirical study of how the United States Patent and Trademark Office (PTO) has applied the immoral-or-scandalous prohibition in practice."


On the basis of these empirical findings, we conclude that the § 2(a) bar on the registration of immoral-or-scandalous matter violates the Free Speech Clause and is unconstitutional. As a preliminary matter, many of the marks subject to an immoral-or-scandalous refusal are instances of high-value speech. Section 2(a)’s immoral-or-scandalous-marks provision fails to satisfy even the “intermediate scrutiny” applied to commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York because it is not narrowly drawn and is arbitrarily applied. Furthermore, the provision is unconstitutionally vague and has been applied in a viewpoint-discriminatory manner.

Read comments and post your comment here.

TTABlog comment: Two earlier articles by these co-authors have made an appearance at the TTABlog: "The Scope of Strong Marks: Should Trademark Law Protect the Strong More Than The Weak?," 92 N.Y.U. Law. Rev. 1390 (November 2017). [pdf here]; and "Are We Running Out Of Trademarks: An Empirical Study of Trademark Depletion and Congestion", 131 Harv. Law Rev. 948 (February 2018). [pdf here].

Text Copyright John L. Welch 2019.

posted by John L. Welch @ 6/13/2019   0 comments