TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Reversed?
The Board has affirmed 36 of the first 38 Section 2(d) refusals that it reviewed this year. Here are three more. At least one was reversed. How do you think these three cases came out? [Results in first comment].
In re 77 Enterprises LLC, Serial No. 87639234(March 24, 2023) [not precedential] (Opinion by Judge Marc A Bergsman) [Section 2(d) refusal of 77 SPORTBAR for “bar and restaurant services, namely providing of food and beverages for consumption on the premises; restaurant and sports bar services with televisions on premises,” in view of the registered mark 77 SOCIAL CLUB and design for “catering services; restaurant and bar services."]
In re Panini America, Inc., Serial No. 90004362 (March 22, 2023) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of KABOOM! for “Collectible sports trading cards; Sports trading cards,” in view of the identical mark registered for "Comic books; magazines featuring printed stories in illustrated form and comic book stories and artwork, namely, comic magazines; printed periodicals in the nature of magazines in the field of comic book stories and artwork; series of comic book style novels; series of non-fiction books in the field of comic books."
In re Florentina Iulia Vaida, Serial No. 990029026 (March 24, 2023) [not precedential] (Opinion by Judge Cindy B. Greenbaum, with dissent by Judge Robert H. Coggins) [Section 2(d) refusal of the mark VA & design (below left) for numerous goods in five International Classes, including jewelry handbags, sweaters, t-shirts, and footwear, in view of the mark VA (Stylized) (below right) registered for, inter alia, jewelry handbags, sweaters, t-shirts, and footwear.]
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TTABlog comment: How did you do? See any WYHA?s
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 3/28/2023
8 comments
8 Comments:
The third one was reversed, the other two affirmed.
Will be interesting to see if BOARDRIDERS IP HOLDINGS, which has 4 registrations and two pending applications files an opposition.
That was my guess bit only because the other two were slam dunks. I never would have appealed the third so that says a lot about how subjective this is. I've seen much less similar design marks be considered, by examining attorneys, too similar in final refusals. The fun continues.
As a collector of sports cards, the Panini case is interesting to me. "The hobby," as people involved call it, is intense and requires quite a bit of knowledge to understand what has value. It's not really for kids anymore and is instead mostly pursued by adults building specific types of collections and speculating. Packs and boxes of packs cannot be easily found at stores as they typically sell out as soon as they hit the shelves. Collectors buy them in bulk because they are "hunting for hits." The Kaboom! cards are highly sought after and one of the top two "hits" people look for. Kaboom! cards of stars sell on the secondary market for hundreds to thousands of dollars.
I think what Panini failed to do here is to impress on the Board that this isn't really a kids hobby at all and the consumers are, in fact, highly knowledgeable and discerning, especially when it comes to "hits" like the Kaboom! cards. It seemed to easy for the Board to just brush that idea off. In addition, while a hobby store might sell both comic books and sports cards, it is impression that these consumers do not overlap much and are actually quite discerning about what they are buying or looking for.
Yep, the giveaway this time around was the presence of a dissent.
I don't understand why there being a dissent was a "giveaway"?
After years of reading this blog, is it time yet for a more common law (if not binding, at least guiding) jurisprudential TTAB approach?
A little sarcasms, possibly humor, and a little incredulity to end another trademark day.
Does anyone actually believe that any reasonable, average, run of the mill consumer would be "confused" as to "source" coming in contact in the same store, the same town or city of a restaurant, the same anything, with a non-identical, similar packaging design, stylization with the millions of trademarks co-existing without any mass hysteria of confusion.
When I saw the word KABOOM, I though of my childhood breakfast cereal with the creepy clown (what clown is not creepy, right?). Does the cereal now make both comics and sports cards??????? Guarantee, the TTAB would affirm using the same lack of any supporting evidence whatsoever. THEY MUST BE STOPPED. Anyone willing to storm the TTAB with me?
There is counterfeiting and attempting to free-ride. Obviously, that is intentionally "confusing." But "source confusion between two food joints using an address number or year number creating confusion. Confusion, Nope, just carelessness, obliviousness, too busy to pay attention to what the heck they are doing. The only people confused are the TTAB Board Members
The TTAB continues to say products and services are related without any factual support. To be honest, I question what world are they living in. It ain't the real business world, but a mysterious and complicated world of a million or so English and sometimes foreign words that have to somehow be jumbled together to avoid the plaque. The TTAB are the best trope of bureaucrats who forget that their missions IS TO PROMOTE COMMERCE, not AFFIRM 95% of these stupid 2(d) cases. After working at the USPTO and then practicing for 30 more years, I just smile and grin at all the idiocracy all around, pick up my guitar and play
Just like yesterday, Then I'll get on my knees and pray, we don't get these 2(d) decisions again.
AT LEAST THEY ARE FINALLY CATCHING ON THAT MEMES ON CLOTHING DO NOT FUNCTION AS A MARK.
Thanks John for all your hard work on TTABLOG.AND BNIG SHOUT OUT TO KEVIN PESKA ON THE USPTO FAILURE TO FUNCTION WEBINAR.
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