TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?

Here are the first three TTAB decisions of the new year in appeals from Section 2(d) refusals. No hints today. How do you think they turned out? [Answer in first comment].

In re Monterey Tile DE, Inc., Serial No. 87627828 (January 3, 2022) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of the word-plus-design mark shown below for, inter alia, "non-metal tiles for countertops, walls, sinks, and floors in bathrooms and kitchens," in view of the registered mark BELLAVITA TILE registered for “Non-metal tiles for walls and floors; ceramic tiles; porcelain tiles; glass tiles.” Applicant maintained that its mark "is dominated by the design elements of the stately manor house, not by the improperly dissected, somewhat similar text elements of the mark and the cited mark[]."]

In re Probiohealth, LLC, Serial No. 88933368 (January 4, 2022) [not precedential] (Opinion by Judge Jonathan Hudis). [Section 2(d) refusal of PROBIOHEALTH for "dietary probiotic supplements for pets; nutritional probiotic supplements," in view of the registered mark BIOHEALTH & Design for "dietary and nutritional supplements." Applicant argued that BIO is conceptually weak for supplements, and the term HEALTH (by way of a dictionary definition) is merely descriptive of supplements and also conceptually weak."]

In re Sunset Songs, LLC, Serial No. 90114652 (January 4, 2022) (Opinion by Judge Linda A. Kuczma)[not precedential]. [Section 2(d) refusal of SUNSET SONGS for "Advertising and promotion services in the field of music; Preparing audio visual presentations for use in advertising; Online retail store services featuring musical sound recordings and video recordings featuring music" [SONGS disclaimed], in view of the registered mark SUNSET CREATIVE (in standard character form) for "Marketing consulting, namely, digital marketing and social media marketing; On-line advertising and marketing services; Promoting, advertising and marketing of the brands, products, services and online websites of individuals, businesses and nonprofit organizations; providing marketing consulting in the field of social media" [CREATIVE disclaimed]. Applicant pointed to five existing third-party registrations for marks containing the word SUNSET in arguing that the word "SUNSET" is a weak formative].

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Text Copyright John L. Welch 2021.