TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
So far this year, the TTAB has affirmed 162 of the 174 Section 2(d) refusals on appeal (about 93%). Here are three decisions that came down recently. How do you think they came out? [Results in first comment].
In re Biztug LLC, Serial No. 90166759 (November 23, 2022) [not precedential] (Opinion by Judge Michael B. Adlin) [Section 2(d) refusal of the mark BIZTUG for, inter alia, marketing services, in view of the registered mark TUGG (in standard form) for overlapping marketing services.]
In re Anton Anisimov, Serial No. 88149531 (November 29, 2022) [not precedential] (Opinion by Judge Karen Kuhlke) [Section 2(d) refusal of the mark INVOODOO for "Computer software consulting, not including game software; Software design and development, not including gaming software" in view of the registered mark VOODOO for "Designing and developing downloadable electronic game software"].
In re Bowery Farming Inc., Serial No. 88873491 (November 29, 2022) [not precedential] (Opinion by Judge David K. Heasley). [Section 2(d) refusal of THE MODERN FARMING COMPANY for "[f]resh produce, namely, fresh vegetables, fruits, and unprocessed grains" (FARMING and COMPANY disclaimed), in view of the registered mark MODERN FARMS for processed mushrooms, and for fresh, raw, and unprocessed mushrooms (FARMS disclaimed].
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TTABlog comment: How did you do? See any non-WYHAs?.
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 12/02/2022
3 comments
3 Comments:
All three refusals were affirmed.
The USPTO and the TTAB are way too soft on weak and descriptive marks. How is "MODERN FARMS" (Reg. No. 3760718) registered on the principal register without a 2f? I see that "farms" was disclaimed, which just leaves "modern". "Modern" is plainly descriptive.
Neither of the marks in the In Re Bowery Farming case should be registered and 2d should have nothing to do with it since the marks are so weak as to have no protectable value.
Turning the to the 2d issues addressed by the Board, the Board dropped the ball on the third-party use arguments. The Board's history of giving little weight to third party registrations makes no sense and is contrary to the treatment given by most article 3 courts (and maybe all District Courts).
This case is silly. Bowery Farming dropped the ball by even filing an application for such a descriptive mark. They should have just used the mark and, if sued for infringement, brought their arguments as defense in District Court. No District Court finds infringement on these facts. But now, having had their application refused by the TTAB and having that refusal affirmed by the Board, use of this silly descriptive mark will be seen as willful and bad faith intent could be found sufficient to turn the tide in an infringement action. The advise to the client should have been something like, "this mark is descriptive and there is a lot of third party use. Pick something better because even if you can get a registration, you'll never be able to enforce that registration. But if you're in love with the mark, use it and don't seek registration since, again, the mark is unenforcable."
This was mishandled by everyone who touched it from the applicant's lawyers to the Board.
I agree with anonymous above, 100%.
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