TTABlog Test: At Least One of These Three Section 2(d) Refusals Was Reversed!
Some ten years ago, a TTAB judge said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three decisions issued last week in appeals from Section 2(d) refusals. At least one refusal was reversed. Let's see how you do. [Answers in first comment].
In re Lit Hookah LLC, Serial No. 87904592 (March 24, 2020) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of the mark shown immediately below, for "glass hookahs, including whole hookahs and hookah parts such as the bowl, down-stem and hoses to be utilized to smoke tobacco and other herbal products without electronic components," in view of the registered mark LIT HOOKAH LOUNGE & BAR for "hookah lounge services" [HOOKAH LOUNGE & BAR disclaimed].
In re Tintoria Piana U.S., Inc., Serial No. 87776775 (March 25, 2020) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal to register PIANA HYDRO for "textile fibers" in view of the registered marks LORA PIANA and formatives thereof for textiles, fabrics, and yarns].
In re LEMA, Serial No. 87892342 (March 26, 2020) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of DADA CHAPEL for "Beer, ale, lager, stout and porter" and for "Spirits and liqueurs," in view of the registered mark shown immediately below, for "wines"].
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TTABlog comment: How did you do? Any WYHAs here?
Text Copyright John L. Welch 2019.
posted by John L. Welch @ 3/30/2020
3 comments
3 Comments:
The first case was affirmed, the second and third were reversed.
The opinion in the first case is worth a read.
Wow! The Board found that beer and wine were not related in an ex parte proceeding?
In looking at the blurbs for all three, my first instinct was to appeal the initial refusal to register the Piana Hydro mark because it did not appear that similar to Lora Piana. . Even though they were both textiles, the word "Hydro" signaled there was going to be some difference. In looking at the case and the DuPont factors, the only similarity in the marks is the word Piana (which reads like a last name to me). The fact that the there are accompanying words in both marks and that the Piana is not in the same position in the marks seemed to be enough to discredit similarity.After reading the case, I saw the TTAB had similar thoughts about the similarity of the marks. While I thought the goods weren't similar, it to look at the analysis the board used to come to that conclusion. My initial focus on the hydrophobic quality of Piana Hydro's products. But the board, while they did speak on the hydro aspect, focused on the evidence the attorney provided in showing that several companies offers fabrics and fibers. This decision might have turned out differently had the examining attorney found more conclusive evidence than the ones she offered.
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