TTABlog Test: Three Recent Section 2(d) Appeals - How Did They Come Out?
About 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 recent decisions in appeals from Section 2(d) refusals, decided on the same day. How do you think these came out? [Answers in first comment].
In re Auto Parts Avenue, LLC, Serial No. 87804250 (March 20, 2020) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of AUTO PARTS AVENUE for "Lights for vehicles; rear lights for vehicles; tail lights for vehicles" and for "Automotive door handles" [AUTO PARTS disclaimed], in view of the registered mark AUTOMOTIVE AVENUES for "Automobile dealerships; retail store services featuring automotive accessories" and "Automotive maintenance and repair" [AUTOMOTIVE disclaimed]].
In re James R. Fonda, Serial No. 86817837 (March 20, 2020) [not precedential] (Opinion by Judge Jonathan Hudis). [Section 2(d) refusal of FIRST INDEPENDENT CHURCH OF SCIENTOLOGY for "spiritual ministry services" in light of the registered mark SCIENTOLOGY for"religious and ministerial services including pastoral counseling"].
In re Immobiliare M.V. S.R.L., Serial No. 79154979 (March 20, 2020) [not precedential] (Opinion by Judge Jyll Taylor) [Section 2(d) refusal of THE ORIGINAL HOOLI and Dog Head Design (shown below) for "clothing, footwear, and headgear, namely, tops, bottoms, jackets, suits, dresses, hats and footwear, except for t-shirts" [THE ORIGINAL disclaimed] in view of the registered mark" HOOLI for “clothing, namely, t-shirts"].
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TTABlog comment: How did you do? Any WYHAs here?
Text Copyright John L. Welch 2019.
posted by John L. Welch @ 3/24/2020
3 comments
3 Comments:
All three were affirmed.
I love when I see applicants try to get around a 2(d) by amending the ID to say "except for ..." and think that will be enough. Just look at this HOOLI decision (definitely a WHYA, BTW): the applicant wanted exclusive rights to use THE ORIGINAL HOOLI in connection with all "tops ... except for t-shirts." So the applicant is saying, "Let me have all shirts, just not t-shirts, and consumers won't be confused." Come on. Unless the examiner limits the refusal to certain goods and/or services, such limitations are meaningless.
Finally got one of these right!
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