TTABlog Test: Which of These Three Section 2(d) Oppositions Was Dismissed?
A TTAB judge once told 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/services. The judge was talking about ex parte appeals, but inter partes cases are more complicated. Here are summaries of three recent TTAB decisions in Section 2(d) oppositions. One of the oppositions was dismissed. How do you think they came out? [Answers in first comment].
Huttopia v. BoomShout, LLC, Opposition No. 91251604 (October 6, 2021) [not precedential] (Opinion by Judge Marc A. Bergsman) [Section 2(d) opposition to registration of YURTOPIA for "providing hotel accommodation" in view of the registered mark HUTTOPIA for, inter alia, “providing campground facilities; catering of food and drinks at recreational camps and on camp grounds; providing temporary housing accommodations in hotels, boarding houses and tourist homes; providing a website for the organization, arrangement and booking of temporary accommodation and lodging, and campgrounds; organization, booking and arrangement of temporary international accommodation and lodging and campgrounds."]
Sazerac Brands, LLC v. Productores Mexicanos De Invernaderos Promex, S.C., Opposition No. 91250997 (October 5, 2021) [not precedential] (Opinion by Judge Michael B. Adlin) [Section 2(d) opposition to registration of the mark shown below left, for "mezcal" in view of the registered mark shown below right, for "tequila."]
Cytozyme Laboratories, Inc. v. JH Biotech, Inc., Opposition No. 91244593 (September 30, 2021) [not precedential] (Opinion by Judge George C. Pologeorgis) [Section 2(d) opposition to SEEDUP for "microbial inoculants for application to seeds used in agriculture," in view of the registered mark SEED+ for "plant growth nutrients for treatment of seeds for use in agriculture, horticulture and forestry, plant nutrition preparations for the treatment of seeds."]
TTABlogger comment: How did you do?
Text Copyright John L. Welch 2021.
posted by John L. Welch @ 10/20/2021
2 comments
2 Comments:
The first two oppositions were sustained, the third dismissed.
When two marks have similar meanings like HUTTOPIA and YURTOPIA, the TTAB will proclaim that consumers will believe that the junior mark is a brand extension of the senior, or a variant offering (or words to that effect). It would be nice if they played by the same rules that attorneys do...where's the evidence of that? I can't think of any examples where brand owners butcher their own brand for purposes of a line extension, and apparently neither can the Board.
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