TTABlog Test: How Did These Three Likelihood of Confusion Cases Come Out?
Here are three recent likelihood of confusion cases: one opposition and two ex parte appeals. Keeping in mind that the strength of the cited (or pleaded) mark is an important factor in the Board's Section 2(d) determination, how do you think they came out? Answers will be found in the first comment.
In re Bushnell Inc., Serial No. 90882684 (July 28, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman). [Section 2(d) refusal of WINGMAN for "portable audio speakers, excluding cases; wireless speakers, excluding cases" in view of the identical mark registered for "cell phone cases"].
Hub Group, LLC v. SPL Group, Inc., Opposition No. 91263984 (August 2, 2023) [not precedential] (Opinion by Michael B. Adlin) [Opposition to registration of SHIPHUB for "software as a service (SAAS) services featuring software for shipping management,” on the ground of likely confusion with the common law mark HUB GROUP (standard characters) for the same services, and the registered mark HUBPRO for downloadable software for tracking shipments.]
In re UBC Food Distributors, Inc., Serial Nos. 90820054 (August 2, 2023) [not precedential] (Opinion by Judge Christoper Larkin) [Section 2(d) refusal of PRIME (Stylized) for "Chocolate; Chocolate and chocolates; Chocolate bars; Chocolate cakes; Chocolate candies; Chocolate truffles; Filled chocolate; Milk chocolate" in view of the registered mark PRIME PASTRIES for "baked goods, namely, croissants, croissant pockets, danishes, cakes, pastries, bear claws, puff pastries, namely, turnovers, fruit-filled pastry sticks, strudel puffs and puff sheets, rolls, buns, strudels, puff dough, and cookies, and frozen dough" [PASTRIES disclaimed]].
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TTABlog comment: How did you do?
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 8/04/2023
5 comments
5 Comments:
The opposition was dismissed. The two refusals were affirmed.
John..the first links to a case involving the marks BLACK BELT and BLACKBELT
Te BLACK BELT case is more evidence for how it is becoming nearly impossible to use the Thor Tech" type argument that uses third party registrations to prove "unrelatedness", given the rationale of the Board as to why one can't rely on them as a general matter (same can be said for use of 3rd party marks to show related goods and services but that Mucky Duck is a survivor!)
Not sure I agree that speakers and cell phone cases are sufficiently related for the WINGMAN rejection, but I agree with the other two.
Thanks, Gene. I fixed it.
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