BREAKING! TTAB Reverses Section 2(d) Refusals of FURY TIRES and FURY OFF-ROAD for Tires

So far this year, the Board has affirmed 69 of the first 71 Section 2(d) refusals reviewed on appeal (i.e., 97%). Trademark practitioners are scratching their collective head. But the Board uncommonly just reversed two Section 2(d) refusals: "We believe that this case presents a situation where the differences in the marks, taken in their entireties, outweigh the other factors. While not a common occurrence, cases like this arise from time to time." In re Limin Jiang, Serial Nos. 88921750 and 88921790 (May 8, 2024) [not precedential] (Opinion by Judge Thomas L. Casagrande).

The USPTO refused registration of FURY TIRES (TIRES disclaimed) and FURY OFF-ROAD (OFF-ROAD” disclaimed), both for “Tires for off road use; off road tires,” finding confusion likely with the registered mark ELDORADO SPORT FURY AT 4S for “tires” (SPORT disclaimed). In an opinion of only twelve pages, the Board reversed the refusals.

Not surprisingly, the Board found the word FURY to be the dominant element in applicant's marks. The Examining Attorney argued that the words ELDORADO and FURY dominate the cited mark, since SPORT is descriptive and AT 4S stands for "all terrain four seasons." Hold you horses, said the Board:

Even if we were to consider the terms “AT” and “4S” descriptive―and we hasten to note that we don’t think the evidence cited by the Examining Attorney quite rises to that level―the mark we are considering is made up of five terms: ELDORADO SPORT FURY AT 4S. To conclude, as the Examining Attorney does, that consumers will focus selectively on the first and third terms, but not the second, fourth, and fifth, strikes us not only as a legally improper dissection of the mark, but also as an inaccurate reflection of how consumers would perceive the registered mark.

The Board found that, when the marks are considered in their entireties, "the multiple dissimilarities between Applicant’s marks and the registered mark overshadow the one similarity." And so, it reversed the refusals to register.

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TTABlogger comment: WHYRR? (Would you have refused registration?)

Text Copyright John L. Welch 2024.