TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Reversed?
So far this year, the percentage of Section 2(d) affirmances is lower than the historical average of about 90%. Here are three more refusals on appeal. At least one was reversed. How do you think these three cases came out? [Results in first comment].
In re Joe Lo Enterprises, Inc., Serial No. 90372116 (April 26, 2023) [not precedential] (Opinion by Judge Martha B. Allard) [Section 2(d) refusal of LIVE ANABOLIC for “Dietary supplements used for supporting healthy testosterone levels and men’s health in general with their workouts and everyday life; the foregoing products not being marketed and sold through direct network marketing" [ANABOLIC disclaimed], in view of the registered mark shown below, for "Enzyme dietary supplements; Nutritional supplements; Nutritional supplements, namely, probiotic compositions; all of the foregoing products marketed and sold through direct network marketing and not in other channels of trade."]
In re Cancer Support Community Central New Jersey, Serial No. 90432548 (April 25, 2023) [not precedential] (Opinion by Judge Christopher Larkin) [Section 2(d) refusal of CROSSROADS4HOPE for "charitable fund raising services," "Providing educational workshops, programs and seminars on topics of interest in the field of cancer to people with cancer, family members and caregivers," "Providing nutritional counseling to patients with cancer who have issues with tolerating various foods making it challenging to maintain healthy and nutritious eating habits," and "Providing emotional counseling and emotional support services through a decision support program to assist patients with cancer, family members and caregivers in preparing for upcoming meetings with their oncology team, including discussion of questions they may want to ask their health care professionals to better understand cancer, proposed treatments and issues associated with proposed treatments," in view of the registerd mark shown below, for "Eleemosynary services, namely, providing alcohol and drug rehabilitation services; meals; and clothing; short and long term accommodation; educational instruction; personal and family counseling; employment counseling; vocational instruction, and spiritual guidance."].
In re Buzz Bar LLC, Serial No. 90358149 (May 1, 2023) [not precedential] (Opinion by Judge Jyll Taylor) [Section 2(d) refusal of MAJESTIC MANGO for "Ice cream infused with alcohol; Sorbet infused with alcohol" [MANGO disclaimed] in view of the registered mark MAJESTIC SHAKES for "Frozen confections; ice cream products, namely, ice cream and ice cream drinks" [SHAKES disclaimed].
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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 @ 5/03/2023
4 comments
4 Comments:
The first two were reversed.
I thought they were ALL reversed. How can sorbet infused with alcohol be related to "regular" sorbet? I think there has to be some limit put on the scope of what a description of goods can encompass. I disagree with the Board where they stated: "Registrant’s broadly worded recitation of “frozen confections; ice cream products, namely, ice cream” encompasses Applicant’s more narrowly identified “ice cream infused with alcohol; sorbet infused with alcohol." If I applied for sorbet infused with dirty sneakers, would that be encompassed by sorbet? At some point it's just not the same goods, not would a consumer expect them to come from the same source UNLESS there is evidence of third party use proving relatedness.
Gene, It's impossible to detect sarcasm on the internet, so I'll assume that you're being forthright. The answer is yes, sorbet infused with dirty sneakers is sorbet. A registration limited to the former might not bar a new, also limited registration, but certainly conflicts with a registration for "sorbet" generally.
There is so much dissection going on...
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