TTABlog Test: How Did These Three Recent 2(d) Appeals Turn Out?
A TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time just by looking at the marks and the involved goods/services. Here are the three such appeals recently decided by the TTAB. How do you think these three came out? No hints this time. [Answers in first comment.]
In re Suarez Industries, Inc., Serial No. 97602779 (April 10, 2024) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of EDENPURE for household cleaners in view of the registered mark EDEN'S PURE for body care products.]
In re Oracle's Apothecary, LLC, Serial No. 90399653 (April 11, 2024) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal to register ORACLE’S APOTHECARY for online retail store services featuring, inter alia, smudge sticks [APOTHECARY disclaimed] in view of the registered mark ORACLE HEALING & Design for Online retail store services featuring, inter alia, healing crystals [HEALING disclaimed].]
In re Deidra O. Babers and Leon Babers, Jr., Serial No. 90775501 (April 12, 2024) [not precedential] (Opinion by Judge Melanye K. Johnson). [Section 2(d) refusal to register the mark KINGDOM KUTS & Design for "Barber shop services; Barber services; Barbering services" [KUTS disclaimed] in view of the registered mark THE KINGDOM BARBERSHOP for “Barbershops; Hair cutting; Hair cutting services; Hair salon services, namely, hair cutting, styling, coloring, and hair extension services" [BARBERSHOP disclaimed].]
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TTABlog comment: How did you do? See any non-WYHA?s
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 4/16/2024
8 comments
8 Comments:
All three were affirmed.
John, you need to review these again, particularly that third entry.
"A TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal 95% of the time just by looking at the marks and the involved goods/services." I can predict the outcome (at least) 95% of the time by saying, "affirmed."
summary 3 has some errors.
Hi. I think last one has a typo - should be KINGDOM KUTS, not KING KUTS.
Thank you all for pointing out the errors in the third item. My apologies. I guess I should have my coffee before I post.
So . . . did everyone else know what a "smudge stick" was?
In the real world (not USPTO theoretical fantasy land of cherry-picking a handful of examples from the Internet and calling it case closed), I have some serious doubts that household cleaners and body care products are related products. I'm sure they exist, but I can't think of a single real-world example in which cleaning products and body care products are marketed under the same mark. And certainly, consumers are not actually accustomed to seeing these two distinct product groups being marketed under the same mark. This analysis has simply got to be challenged on appeal by someone.
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