The TTABlog<sup>®</sup>: July 2024

TTAB Affirms Section 2(c) Refusal of TRUMPINOCCHIO for Shirts due to lack of Consent by ... Guess Who?

In an opinion of a mere seven pages, the Board upheld a Section 2(c) refusal to register the proposed mark TRUMPINOCCHIO for “Bumper stickers; Cards, namely, greeting cards, note cards, business cards; Posters, Cups; Dishes, Caps being headwear; Hats; Jackets; Shirts," on the ground that the mark comprises the name of former President Trump without his written consent. This appeal had been suspended pending the outcome of the TRUMP TOO SMALL appeal (Vidal v. Elster). In re Richard Zajkowski, Serial No. 87554778 (July 29, 2024) [not precedential] (Opinion by Judge Karen S. Kuhlke).

Zajkowski argued that his proposed mark is a protected parody and so the statutory refusal was unconstitutional under the First Amendment. The Elster decision put paid to that argument.

The constitutional challenge to Section 2(c) as an impermissible restriction on the right to free speech is squarely addressed and rejected by the U.S. Supreme Court in Vidal v. Elster, 602 U.S. 286 (2024) . . . . In that decision, the Court held that “the names clause in § 1052(c), does not violate the First Amendment.” Id. at 289. In view thereof, Applicant’s First Amendment challenge is no longer viable . . . .

Zajkowski conceded that TRUMP "obviously" refers to the former President, and the evidence supported this finding. Based on the strong association of the word TRUMP with Donald Trump the Examining Attorney Kapil K. Bhanot concluded that in the absence of written consent the application must be refused under Section 2(c). Zajkowski contended that "no reasonable person would assume a business association between Donald J. Trump and TRUMPINOCCHIO."

Section 2(c) has been interpreted to mean that when a name appears in a proposed mark, the written consent of the person with that name must be supplied where: (1) the public would reasonably assume a connection between the individual and the goods or services because the individual is so well known; or (2) the individual is publicly connected with the business in which the mark is used. (emphasis added).

Here, the evidence showed former President Trump is extremely well known, not only because of his political office but also because of his prior celebrity. Consequently, "there is no question that the public would view the name in question as the name of a particular living individual." "Thus, the necessary connection for purposes of Section 2(c) exists."

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TTABlogger comment: Is there something about the word PINNOCHIO that ties the mark to Mr. Trump?

Text Copyright John L. Welch 2024.

TTABlog Test: Which of These Section 2(d) Refusals Was/Were Reversed?

So far this year, the rate of TTAB affirmance of Section 2(d) refusals is running at about 94%. However, at least one of these recent Section 2(d) refusals summarized below was reversed. How do you think these appeals came out? [Answers in first comment.]

In re Paragon 28, Inc., Serial Nos. 88283057 & 88283073 (July 25, 2024) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal of the marks SILVERBACK, in standard character and design forms, for "Surgical implants, namely, bone plates and bone fasteners made from artificial material for use in the foot and ankle; all the foregoing not containing silver material," in view of the registered mark SILVERBAC for "surgical apparatus and instruments for medical, dental and veterinary use; artificial limbs, eyes and teeth; suture materials . . . all of the foregoing containing sufficient natural silver ions to meet the standard for use of the term for antimicrobial benefits in the relevant industries.”]

In re Bryant Family Confections, LLC, Serial No. 97294648 (July 25, 2024) [not precedential] (Opinion by Judge Albert J. Zervas) [Section 2(d) refusal of the marks ENCORE ZERO for "wafers; edible wafers" [ZERO disclaimed], in view of the registered marks SWEET ENCORE for "dessert items, namely, cakes, cheesecakes, crème brulee, dessert mousse, pies, cream puffs, bread pudding, flan, dessert soufflés, dessert bar cookies, bars, brownies, frozen desserts consisting of fruit and cream topping, mousse desserts consisting of cinnamon, chocolate, and cream" and the word-and-design mark shown below, for "bakery goods and dessert items, namely, cakes, cheesecakes, crème brulee, dessert mousse, pies, cream puffs, bread pudding, flan, dessert soufflés, dessert bar cookies, brownies, desserts consisting of fruit and cream topping, desserts consisting of cinnamon, mousse, chocolate, and cream." SWEET and FINE DESSERTS disclaimed].]

PharmAssist Concierge Pharmaceutical Services, PLLC, Serial No. 88326775 (July 25, 2024) [not precedential] (Opinion by Judge Cheryl S. Goodman) [Section 2(d) refusal of the mark shown below left, for "Preparation of prescriptions by pharmacists; Pharmaceutical consultations; Health care services, namely, wellness programs; Pharmaceutical consultations provided via phone, online chat or video conferencing; Providing health care information by the Internet; Providing in-person holistic health care services; Providing medical information, consultancy and advisory services; Pharmaceutical advice," in view of the registered marks PHARM-ASSIST for "Pharmaceutical services, namely, processing online and telephone prescription orders in retail and central fill pharmacies; Retail pharmacy services," and the mark shown below right, for "providing medical information to and concerning senior citizens; providing medical testing; and providing medical information to and concerning senior citizens pertaining to medicine, health, and medications."]

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TTABlog comment: How did you do?

Text Copyright John L. Welch 2024.

With Amended First Use Date, RESORT WEAR SEASPICE Registration Survives Section 2(d) Attack

The Board denied a petition for cancellation of a registration for the mark shown below, for various clothing items, rejecting Petitioner Paradise Holdings' likelihood of confusion claim because Paradise failed to prove priority. Respondent Neo Nyc asserted dates of first use in its registration as early as January 1, 2018, but by clear and convincing evidence it successfully established a first used date of June 10, 2015. Paradise Holdings, Inc. v. Neo Nyc inc, Cancellation No. 92078182 (July 26, 2024) [not precedential] (Opinion by Judge Jennifer L. Elgin).

Under Section 7(e) of the Trademark Act, 15 U.S.C. § 1057(e), a registration may be amended “for good cause.” When a registrant seeks “to prove a date of first use earlier than the date alleged in its application for registration . . . its proof of that earlier date must be ‘clear and convincing.’” Bass Pro Trademarks, 2008 TTAB LEXIS 16, at *31 (TTAB 2008). This same standard applies whether a party moves to amend its registration or seeks to rely at trial on dates of use earlier than those in the registration.

"The dates of first use in a registration may be used as evidence against the applicant or registrant, that is, as admissions against interest and the like." However, Neo Nyc moved to amend the first use dates and provided an unchallenged explanation of why the stated dates were mistaken. Its witness stated that "he submitted the application without the guidance of an attorney and did not understand 'that we had to be specific to our actual earliest use and what actually constituted 'use’' of a trademark.'"

Paradise did not cross-examine Neo Nyc's witness, nor did it offer any contradictory evidence from Neo Nyc’s third-party manufacturers or customers referred to in the testimony and documentary evidence. Therefore, the Board granted Neo Nyc's motion to amend its first use dates.

. . . Respondent’s testimony and evidence is clear and consistent, uncontradicted, and supports a finding that Respondent started preparations for use of its mark in October 2014 and commenced use of its mark in commerce in connection with clothing on June 10, 2015.

Petitioner Paradise had the burden to prove by a preponderance of the evidence that it had priority in its pleaded mark prior to June 10, 2015. It claimed a first use date of January 1, 2015, for clothing. However, in response to an admission request, Paradise admitted that "SEASPICE was first used in commerce by Petitioner on, or in connection with, clothing on July 12, 2015." This was a binding admission by Paradise that the Board could not ignore.

Even considering that admission as merely a piece of evidence, rather than a binding admission, Paradise's evidence and testimony regarding its first use date was "contradictory and vague." "None of this ambiguous testimony regarding sales prior to June 10, 2015 is supported by any documentation such as sales invoices, sales summaries, pictures, or testimony from customers who purchased clothing items."

And so, the Board denied the petition for cancellation.

Read comments and post your comment here.

TTABlogger comment: So if you're thinking that first used dates stated in a registration don't matter much, think again.

Text Copyright John L. Welch 2024.

TTAB Finds SOLAR CONCIERGE Merely Descriptive of, and Lacking Acquired Distinctiveness for, ..... Guess What?

The USPTO rejected Dana Redden's application to register the proposed mark SOLAR CONCIERGE for "financial consultation in the field of financing of solar energy projects and financial consulting regarding solar energy." [SOLAR disclaimed]. The Board found the mark to be merely descriptive under Section 2(e)(1) and rejected Redden's Section 2(f) claim of acquired distinctiveness. In re Dana Redden, Serial No. 97299114 (July 24, 2024) [not precedential] (Opinion by Judge Michael B. Adlin).

The Board had no doubt that SOLAR CONCIERGE is merely descriptive because it "immediately conveys that as a 'concierge' in the solar energy field, Applicant provides assistance in connection with acquiring or managing a solar energy system, including related financial issues.

The evidence showed that some of Redden’s competitors use the term "solar concierge" in their marks or trade names. Those third-party uses are consistent with the dictionary definitions of the constituent words, and in combination each word retains its merely descriptive significance for the services.

Indeed, it is highly descriptive, as it conveys exactly what dictionary definitions predict it would convey – assisting others in obtaining and managing a solar energy system, including the financial aspects thereof. This is clear from the third-party service mark, trade name and descriptive uses discussed above, and from Applicant’s prior Supplemental Register registration, as well as her disclaimer of “SOLAR” and Section 2(f) claim in her original application.

Because the proposed mark is highly descriptive, Redden bore a "heavy burden" to prove acquired distinctiveness. Redden relied solely on her use of SOLAR CONCIERGE mark for 12 years. The Board found that she fell "far short" of establishing acquired distinctiveness for the proposed mark, "which is commonly used by third parties."

[D]espite Applicant’s use of the term over the years, there is no evidence that consumers or the media understand “solar concierge” as an identifier of Applicant’s services. There is merely evidence that Applicant has used and promoted her proposed mark, unaccompanied by evidence of how widespread the use is, how many consumers have been exposed to the proposed mark, or any indicia of recognition that the proposed mark identifies Applicant’s solar energy consultation services.

The Board concluded that the "plentiful evidence of third party service mark, trade name and descriptive use" of "solar concierge, and the lack of sales and advertising figures, unsolicited media attention, and quantification of consumer impact, was "fatal" to her Section 2(f) claim.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2024.

Sustaining Opposition, TTAB Finds RYDE OUT Confusable with RYDE for Supplements and Energy Drinks

Opposer British American Tobacco ("BAT") ran roughshod over Applicant Ruff Ryders' application to register the mark RYDE OUT for dietary and nutritional supplements and for energy drinks. The Board found confusion likely with BAT's mark RYDE for the same goods. Neither party claimed use of its mark, but BAT established priority based on the constructive first use date of its pending application, which claimed convention priority from a Jamaican application filed in September 2019. British American Tobacco (Brands) Limited v. Ruff Ryders, Inc., Opposition No. 91275212 (July 22, 2024) [not precedential] (Opinion by Judge Michael B. Adlin).

The identity of the goods and their presumed overlapping channels of trade and classes of purchasers weighed "heavily" in favor of finding a likelihood of confusion. Furthermore, the identity of the goods reduces the degree of similarity between the marks necessary to support such a finding.

Ruff Ryders argued that the word "ryde," the phonetic equivalent of "ride," is merely descriptive of the goods because it means "to continue without interference" and "be supported and usually carried along by," thus conveying the connotation that BAT's goods "will help consumers continue without interference or be supported or carried along." The Board was unmoved: "there is nothing that "immediately conveys knowledge of a quality, feature, function, or characteristic" of the goods.

Ultimately, we find that because Opposer’s mark is slightly suggestive, it is conceptually slightly weak, somewhat reducing the scope of protection to which it is entitled. Nonetheless, the mark remains inherently distinctive and it is not so weak as to be unentitled to protection against confusingly similar marks.

The Board found the marks to be "more similar than dissimilar" as to appearance, sound, connotation and commercial impression. "Competing uses of a peculiar misspelling of “ride” for identical goods is likely to cause confusion."

Ruff Ryders claimed that RYDE OUT is a unitary mark and has a meaning distinct from "ride" alone: it is the phonetic equivalent of "ride out," which means "to succeed in surviving or getting through (something dangerous or harmful that cannot be stopped or avoided)." The Board acknowledged that RYDE OUT may convey a different meaning and create a different commercial impression than RYDE alone, but it found this difference to be "outweighed by the marks' similar appearance and sound."

Moreover, Ruff Ryders promotes the term RYDE OUT in connection with motorcycle events, and it essentially conceded that it "came up with the idea of the RYDE OUT energy drink as a compliment to the ‘Ride Out’ or ‘Ryde Out’ motorcycle lifestyle synonymous with [Applicant]."

The Board concluded that "[t]he goods are identical in part and presumed to travel in the same channels of trade to the same classes of consumers. The marks are more similar than dissimilar and Opposer’s is inherently distinctive and conceptually strong enough to be entitled to protection against Applicant’s. Confusion is likely."

Finally, the Board point out that BAT’s priority is "merely contingent" because it is based solely on its pleaded application filed under Sections 1(b) and 44(d) of the Act. "[N]o final judgment shall be entered in favor of an applicant under section 1051(b) of this title before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to section 1057(c) of this title.” 15 U.S.C. § 1068; § 1068; Spirits Int’l, 99 USPQ2d at 1549.

And so, the opposition was sustained on the ground of likelihood of confusion, contingent upon BAT establishing its constructive use through registration of the mark in its pleaded application.

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TTABlogger comment: Do you think that RIDE OUT would be found confusable with RYDE?

Text Copyright John L. Welch 2024.

TTAB Sustains Nike's Opposition to "4IR", Finding Confusion Likely with "AIR" For Shirts

Footwear behemoth Nike, Inc. ran over pro se Applicant Timothy Jinks in this opposition to registration of the mark 4IR for "shirts." The Board found confusion likely with Nike's common law mark AIR for various types of shirts. Not a single DuPont factor weighed in applicant's favor. NIKE, Inc. v. Timothy Jinks, Opposition No. 91278263 (July 9, 2024) [not precedential] (Opinion by Judge Thomas W. Wellington).

Applicant Jinks did not submit any testimony or evidence, and did not file a trial brief. Of course, he was not required to do so. It was up to Nike to prove its case.

Jinks admitted that Nike "has continuously used marks consisting of or incorporating the word AIR in connection with footwear and apparel in interstate commerce for decades." He did not dispute that Nike had priority of use for its AIR marks, nor did he dispute the inherent distinctiveness of AIR.

The Board focused its analysis on Nike’s prior common law rights in the mark AIR, in various stylized fonts, on apparel, including shirts. [See example above].

The Board observed that because the involved goods are legally identical, it must be presumed that they travel in the same trade channels. [Does that presumption apply to Nike's common law marks? -ed.]. "[G]iven the goods are legally identical in part, the DuPont factors involving relatedness of the goods and their trade channels weigh heavily in favor of likely confusion."

Based on Jinks's admissions, Nike's sales figures, and long use of the AIR mark, the Board found the mark to be "commercially strong in connection with apparel, including shirts," and meriting "a broader scope of protection than marks without any demonstrated commercial strength."

Turning to a comparison of the marks, the Board agreed with Nike that the numeral "4" may be presented in a variety of manners that closely approximate the letter "A."

Indeed, Applicant seeks to register its mark in standard character format, meaning that, if registered, it is conferred rights in the mark depicted in any font style, size or color. Trademark Rule, 2.52(a), 37 C.F.R. § 2.52(a). In other words, we must anticipate Applicant’s mark being displayed in a manner that where the numeral 4, in 4IR, can appear in a manner such that the overall mark will look quite similar to Opposer’s AIR mark. Thus, we find that the marks are similar in appearance.

Finally, the Board observed that, if Jinks were to use a stylized version of his 4IR mark in which the number 4 closely resembles the letter A, consumers might mistakenly believe that to be another fanciful use by Nike of its AIR mark on apparel. "In sum, the first DuPont factor weighs in favor of finding confusion likely."

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TTABlogger comment: What if Jinks filed to register his mark with a stylized "4" that did not look like the letter "A"?

Text Copyright John L. Welch 2024.

TTAB Easily Finds TREEBNB Confusable with AIRBNB for Temporary Housing Services

Lightning struck the Bolts in their attempt to register the mark TREEBNB & Design for, inter alia, "Arranging temporary housing accommodations." The Board found confusion likely with the registered mark AIRBNB for the identical services. Although one DuPont factor weighed in their favor, the Bolts' application was uprooted by the remaining relevant factors. Airbnb, Inc. v. Seth Bolt and Victoria Bolt, Opposition No. 91273632 (July 17, 2024) [not precedential] (Opinion by Judge Karen S. Kuhlke).

By way of background, the Bolts “provide short-term rentals in treehouses, mirror cabins and domes at their Whitwell, Tennessee and Walhalla, South Carolina properties, along with chef, massage and yoga personal services for overnight guests in Tennessee.”

The DuPont factors regarding the relatedness of the services and the channels of trade weighed "strongly" in favor of a finding of likely confusion, but the purchaser-care factor weighed slightly in the other direction. [I think that renting a treehouse is not an impulse purchase, though I have never rented one - ed.].

As to the commercial strength of the AIRBNB mark, opposer relied on a "fame" survey. media references in the press and in travel and lifestyle publications, its long-standing use of the mark, and opposer's enforcement activity. In the survey, 32.7% of all the respondents named AIRBNB when asked, unaided, to list all companies, websites, or mobile apps they are aware of that offer finding, listing, and reserving rental properties. The record also included many references to and reviews of accommodations available through AIRBNB specifically pertaining to treehouses.

The Board found that AIRBNB "is on the 'very strong' end of the 'spectrum from very strong to very weak.'" Joseph Phelps Vineyards, 857 F.3d at 1325. "Opposer’s AIRBNB is entitled to a broad scope of protection against confusingly similar marks, therefore increasing the likelihood of confusion with Applicants' mark."

Turning to the marks, the Board observed that the terms AIRBNB and TREEBNB have the same structure: a one syllable word preceding the term BNB. This identical structure engenders a similar commercial impression.

[G]iven the commercial strength of AIRBNB in this field and the offering of tree houses on the AIRBNB platform, consumers would view TREEBNB as a subset of AIRBNB’s services or, as Opposer characterizes it, “consumers would believe Applicants’ TREEBNB services are an expansion of Airbnb’s existing use of [their] Airbnb brand in the treehouse space.”

As a final blow, an Eveready-type survey indicated a 37.5 percent level of confusion between the involved marks.

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TTABlogger comment: I refuse to say that the Bolts were barking up the wrong tree.

Text Copyright John L. Welch 2024.

TTABlog Test: How Did These Three Section 2(d) Likelihood of Confusion Appeals Turn Out?

So far this year, the rate of TTAB affirmance of Section 2(d) refusals is a stunning 94%. Here are three recent TTAB decisions in Section 2(d) appeals. How do you think they came out? [Answers in first comment.]

In re Creative Systems and Design, LLC, Serial No. 97340379 (July 12, 2024) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal of the mark QUANTEX for "Hand tools, namely, ratchet wrenches, sockets, extensions, drive tools, socket sets, open end wrenches, combination wrenches, adjustable wrenches, pipe wrenches, screwdrivers, nut drivers, hex drivers, torque wrenches, and hand drills," in view of the registered mark shown below, for "Electric lamps; Headlights for automobiles; Lamps; LED light assemblies for street lights, signs, commercial lighting, automobiles, buildings, and other architectural uses; LED light bulbs; Light bulbs for directional signals for vehicles; Lighting apparatus, namely, lighting installations; Lights for vehicles; Lighting apparatus for vehicles."]

In re Elite Gold LTD., Serial Nos. 97160619 and 97213291 (July 17, 2024) [not precedential] (Opinion by Judge Mark A. Thurmon). [Section 2(d) refusal of the marks ROMA, in standard characters, for "cookies and biscuits; all of the foregoing not for sale at wholesale or for foodservice use" and the word-and-design mark shown below left, for "biscuits, crackers, cheese-flavored biscuits; cheese biscuits; baked cheese-flavored crackers; all of the foregoing not for sale at wholesale or for foodservice use," in view of the marks ROMA, in standard characters, for "pies namely key lime; cookies; cakes; pizza crust; and desserts namely tiramisu all for foodservice use," and the word-and-design marks shown below right, for "food products; namely, flour, pasta, bread, biscuits, yeast, salt, mustard, vinegar, spices, tomato sauce, sauces excluding apple and cranberry, pizza, spaghetti, coffee, tea, and sugar, for sale at wholesale to pizza parlors, restaurants and delicatessens for their in-house preparation of meals."]

In re Mario Enrique Santillan Aguirre, Serial No. 90859041(July 19, 2024) [not precedential] (Opinion by Judge Thomas L. Casagrande) [Section 2(d) refusal to register the mark MÁXIMO SANTANA for "Mezcal; Distilled agave liquor; Distilled blue agave liquor," in view of the registered mark SANTANA for "wines."]

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TTABlog comment: Predictions? See any WYHA?s

Text Copyright John L. Welch 2024.

Precedential No. 15: TTAB Affirms Section 2(d) Refusal of UPC for Computer Components, Rejecting "Something More" Requirement When Only Goods are Involved

In a precedential decision, the Board affirmed a refusal to register the mark UPC for, inter alia, display panels as components of computers and smart phones, finding confusion likely with the identical mark registered for charging cables and power connectors. Applicant Samsung argued that "something more" is required to show relatedness of the goods than the mere fact that some third-party manufacturers sell both types of goods. The Board was not impressed. In re Samsung Display Co., Ltd., 2024 USPQ2d 1279 (TTAB 2024) [precedential] (Opinion by Judge Robert H. Coggins).

Since the marks are identical, the first DuPont factor weighed "heavily" in favor of likelihood of confusion. Moreover, in such case, a lesser degree of similarity between the goods is needed to support that finding.

Turning to the second DuPont factor - the similarity and nature of the goods - Examining Attorney Katrina Yang maintained that the goods are related because they are "sold together as part of the same finished product," with the goods often "highlighted or called-out in advertising as being a prominent feature of finished products," especially the display panels and power cable of computer monitors. Many third-party websites highlighted the display panel or screen as an important feature and a selling point. Other websites specify many of the individual components in a laptop computer, including the display and the power cables.

The Board therefore found that "the goods are related because they are each incorporated and used in the same finished electronic products."

Citing Coors Brewing and St. Helena Hospital, Samsung argued that "the fact that some monitors and television manufacturers also sell power cables does not alone imply that consumers will assume that all monitors and televisions have the same source of origin as the power cables. Therefore, “something more” is required to show relatedness between monitors or televisions and power cables."

The Board, however, pointed out that Samsung's reliance on that theory was misplaced. Those two cases involved the relatedness of goods and services, "limiting the requirement for “something more” to circumstances where goods are used in the rendering of services and the relatedness of the goods and services is not evident, well known, or generally recognized." [Coors Brewing involved beer and restaurant services, while St. Helena Hospital concerned hospital-based lifestyle programs and printed materials dealing with fitness.]

As to the third and fourth DuPont factors - the “similarity or dissimilarity of established, likely-to-continue trade channels,” and "conditions under which and buyers to whom sales are made, i.e. ‘impulse’ v. careful, sophisticated purchasing" - Samsung argued that its goods, as components, are sold exclusively to manufacturers of finished products, whereas registrant's goods are finished products themselves and may be purchased separately by retail consumers. The Board noted that Samsung's identification of goods contains no such limitation, and in fact its components may be available to end users and hobbyists who wish to build, repair, or customize their own electronic products. Similarly, registrant's identification of goods is not limited to sales to consumers.

The relevant classes of consumers overlap and, although some purchasers may be sophisticated, others are not, such as hobbyists and gamers who build or repair their own electronic devices. There was no evidence that these ordinary consumers would exercise more than ordinary care.

And so, the Board affirmed the refusal to register

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TTABlogger comment: I guess the Board's clarification of the "something more" requirement made this decision precedential.

Text Copyright John L. Welch 2024.

TTAB Sustains Instagram's 2(d) Opposition to INSTASIZE for Photo Editing Software

In a 95-page opinion, the Board sustained this opposition to registration of the mark INSTASIZE for "Downloadable mobile applications for photo editing," finding confusion likely with the registered mark INSTAGRAM for "Downloadable computer software for modifying the appearance and enabling transmission of photographs." The Board found the goods legally identical, the INSTAGRAM mark famous, and the marks more similar than dissimilar. In addition, the extent of potential confusion (the twelfth DuPont factor) and evidence of the effect of use (the thirteenth DuPont factor) weighed in favor of Instagram. This blog post will attempt to hit the high points, if there are any. Instagram, LLC v. Instasize, Inc., Opposition No. 91253078 (July 15, 2024) [not precedential] (Opinion by Judge Martha B. Allard).

Instasize argued that the parties’ apps perform different functions – its app is for photo editing while opposer’s app is for photo sharing – and that, as a result, the goods are not identical or even related, and consumers would not be confused. The Board pointed out, however, that it must base its decision on the language of the identifications of goods and not “real world conditions.” Likewise, applicant's argument that the apps travel in different channels of trade was irrelevant, since there are no such imitations in the application or registration and the identical goods presumably trave in the same trade channels.

The Board noted that the parties offer their respective apps for free, and consumers of low-cost products “have long been held to a lesser standard of purchasing care," and also that "the least sophisticated consumers of the parties’ mobile apps are likely to exercise a lesser degree of care."

Turning to the strength of the INSTAGRAM mark, opposer's evidence indicated that it has 2 billion (2,000,000,000) users worldwide. Although the data was not limited to the United States, "it is reasonable to infer that a substantial portion of active accounts holders are based in the United States, particularly in light of the fact that Opposer is a U.S.-based company." The evidence also directly showed substantial revenues and advertising expenditures in the U.S.

Opposer’s somewhat dated marketing reports and survey evidence demonstrated that INSTAGRAM has been shown to be a strong brand. And the Board gave Opposer's enforcement activities some probative weight.

Instasize argued that the INSTA element of opposer's mark is weak, since it means instant, and GRAM is also weak, since it means “the idea of recording something in your life." It pointed to 16 third-party registered marks containing the term INSTA, but the Board pooh-poohed 11 of them because they were not for identical goods (and tossed out a twelfth as not being based on use). [This makes no sense to me. If the third-party registrations show that insta means instant, whey isn't that relevant to consumer perception? Do consumers forget the meaning just because the term is not being used for an identical product? - ed.] The remaining five registrations were not enough to make a dent in the INSTAGRAM mark.

As to Instasize's evidence of numerous third-party uses of "INSTA" in app names, opposer countered with its evidence of secondary meaning and the Board accepted opposer's expert testimony based on a 2016 research study. The Board concluded that INSTAGRAM is "famous for a mobile app for modifying the appearance and enabling the transmission of photographs, images, audio-visual content and video content."

As to the marks, Instasize started behind the 8-ball since a lesser degree of similarity is required between the marks when the goods are identical. To make matters worse, the Board found INSTA to be the dominant element of both marks.

Instagram repeatedly promoted its app for use with INSTAGRAM. The Board concluded that Instasize's mark "conveys a meaning and commercial impression that its app is intended to be used to resize photos for sharing on Opposer’s INASTAGRAM app." A consumer survey showing a net rate of 44.0% confusion was "strongly probative of a likelihood of confusion."

In sum, "[c]onsumers encountering Applicant’s mark are thus likely to mistakenly believe that INSTASIZE is an app sponsored or approved by Opposer for use with Opposer’s INSTAGRAM app." And so, the Board sustained the opposition.

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TTABlogger comment: This was a shellacking.

Text Copyright John L. Welch 2024.

TTABlog Test: Is WHOLESALEHOME Merely Descriptive of Dusting Cloths?

The USPTO refused registration of the proposed mark WHOLESALEHOME for "Cloth for wiping or dusting," deeming the mark to be merely descriptive under Section 2(e)(1). The Examining Attorney based the refusal on the connection between the mark and the nature of the means through which the goods are sold (i.e., wholesale). Applicant Ababoo argued that only a direct connection between the mark and the goods themselves will support a Section 2(e)(1) refusal. How do you think this came out? In re Ababoo LLC, Serial No. 90874152 (July 11, 2024) [not precedential] (Opinion by Judge Mark A. Thurmon).

The proposed mark WHOLESALEHOME "will be found merely descriptive if the individual components are merely descriptive, they retain their descriptive meaning in relation to the identified goods, and the combination does not form a mark which has a distinctive nondescriptive meaning of its own as a whole."

Examining Attorney Jeri Ficke maintained that the mark "immediately and directly describes to consumers potential features of applicant's wiping and dusting cloths, namely, their marketing environment and their intended area of use." The Board observed:

If a sufficiently direct connection exists between a meaning of the mark to relevant consumers, on one hand, and the nature of the Applicant’s business, as it relates to the sale of the goods, on the other hand, such a connection can support a Section 2(e)(1) merely descriptive refusal. See, e.g., In re Major League Umpires, 60 USPQ2d 1059, 1062 (TTAB 2001) (finding the mark MAJOR LEAGUE UMPIRES for baseball gear was merely descriptive because the Applicant was a business created and owned by former Major League baseball umpires).

On the other hand, in In re Recreational Equip., Inc., 2020 USPQ2d 11386 (TTAB 2020). the Board held that the connection between a cooperative business and the applicant was too general to support a mere descriptiveness refusal of CO-OP for bicycles.

The Board noted that applicant's own website showed that it sells home products at wholesale. "These are specific details about Applicant’s business, similar to the scenario in the Major League Umpires case. There is a clear and specific connection between the proposed WHOLESALEHOME mark and Applicant’s business. That connection supports the refusal."

The evidence submitted by the Examining Attorney shows that relevant consumers are likely to understand Applicant’s proposed WHOLESALEHOME mark as describing Applicant’s store or business. To summarize that evidence, cleaning cloths are a home product or within the category of home goods. Selling such goods at wholesale is nothing new, so the concept is known to consumers. And Applicant is trying to register a term that consumers will recognize as a type of store that sells home goods at wholesale, which is exactly what Applicant does. The connection between the proposed mark and Applicant’s business is direct and specific.

The Board concluded that the combination of WHOLESALE and HOME does not result in a unitary mark with a separate, nondescriptive meaning. "Rather, each component retains its descriptive significance in relation to the goods such that the combination is descriptive." The absence of a space between WHOLESALE and HOME is of no consequence.

And so, the Board affirmed the refusal.

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TTABlogger comment: Done and dusted.

Text Copyright John L. Welch 2024.

TTABlog Test: Must "DAILY" be Disclaimed in DAILY MIND for Mental Health Services

The USPTO refused to register the mark DAILY MIND for various mental health services, absent a disclaimer of the word "DAILY." The examining attorney maintained that "daily" describes a "feature or characteristic [of the mark], namely, the frequency in which the services are available or provided." Applicant SonderMind argued that the mark is unitary and that consumers "would not single out the word ‘DAILY’ or perceive it as describing the frequency in which the services are offered or available to consumers." How do you think this appeal came out? In re SonderMind Inc., Serial No. 97005621 (July 12, 2024) [not precedential] (Opinion by Judge Thomas W. Wellington).

In support of the refusal, the Examining Attorney relied upon the defined meaning of DAILY as “occurring, made, or acted upon every day” and also pointed to six third-party uses of the term in connection with mental health therapy services, including uses of “daily therapy” [e.g., "Rogers Behavioral Health website offering 'you or your child in daily therapy for several weeks'"(sic)].

SonderMind, based on the definitions of "daily" and "mind," argued that "the combined phrase has several meanings, none of which are immediately descriptive of Applicant’s mental health therapy services, including: (1) a memory that occurs every day, (2) an intention that is acted on every date, (3) an opinion that is made every day, and (4) a mood that occurs every day."

In response, the examining attorney pointed out that "all of applicant’s proposed alternate meanings demonstrate that consumers are likely to understand the wording DAILY as describing the feature or characteristic of 'occurring every day.'"

The Board sided with the SonderMind:

Here, we find consumers encountering DAILY MIND in connection with Applicant’s services will perceive the proposed mark in a unitary manner, and will not attribute a separate, merely descriptive meaning to the term DAILY, by itself. That is, grammatically, consumers will understand the word DAILY as modifying the word MIND and, taken together, as conveying suggestive, but not descriptive, meanings in connection with the services.

According to the Board, "DAILY MIND conveys various suggestive messages, e.g., 'a mood that occurs each day' or 'that Applicant’s services will help consumers create positive intentions they can focus on every day.'" Acknowledging that each of these meanings involves a "daily" occurrence, as the examining attorney pointed out, the Board nonetheless found that "the overall meanings conveyed by entire mark are only suggestive of Applicant’s services and not merely descriptive of them. Simply put, Applicant’s use of DAILY in the phrase DAILY MIND creates a suggestiveness that is not found in the third-party examples of the descriptive phrase 'daily therapy.'"

DAILY is “inseparable” from the entire mark, and the proposed mark DAILY MIND “has a distinct meaning of its own independent of the meaning of its constituent elements.”

And so, the Board rejected the disclaimer requirement and reversed the refusal.

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TTABlogger comment: This decision makes no sense to my mind. Nor can I understand why the applicant made such a big deal out of disclaiming "daily."

Text Copyright John L. Welch 2024.

Cleveland Guardians Attack CLEVELAND SPIDERS for Clothing: Summary Judgment Motion Fails on Fraud, Succeeds in Part on Nonuse

Major League Baseball's Cleveland Guardians trace their history back to a 19th Century team called the Cleveland Spiders. Applicant Adam Barrington's application to register the mark CLEVELAND SPIDERS and the two marks shown immediately below, for various clothing items, was met with an opposition by the Guardians, who alleged, inter alia, fraud, nonuse, and likelihood of confusion with the registered marks CLEVELAND and C for clothing. The Guardians then moved for summary judgment on the fraud and nonuse claims, with limited success. Cleveland Guardians Baseball Company, LLC v. Adam Barrington, Opposition No. 91277995 (June 21, 2024) [not precedential].

Fraud: Applicant Barrington conceded that he never used two of his marks on sweaters, headbands, shorts, or team uniforms, and further that he used the marks on jackets, coats, and pants only after the filing of the corresponding two applications. The Guardians asserted that "[t]here can be no dispute that, at a minimum, [Applicant] acted with reckless disregard for the truth of the statements being submitted."

Barrington asserted that "[i]t was the Trademark Examiner . . . who wrote the more specific list of clothing items that is now recited in the Application.” Acting pro se, he "was simply following the lead and instructions of the Examiner, and Applicant had absolutely no ‘intent to deceive’ when filing, as alleged by Opposer.”

The Board concluded that the Guardians failed to show the absence of a genuine dispute of material fact for trial. "[A]t a minimum, there exist genuine disputes of material fact as to Applicant’s subjective deceptive intent to commit fraud on the Office. Opposer has not introduced any direct evidence of Applicant’s intent to deceive the Office, and Applicant has essentially denied such intent in his submitted affidavit."

And so, the Board denied the summary judgment motion as to the fraud claim.

Nonuse: The Board observed that "an entire application is not deemed void ab initio if the applicant made use on any of the listed goods at the time the use-based application was filed. Barbara’s Bakery, Inc. v. Landesman, Opp. No. 9115782, 2007 TTAB LEXIS 9, at *19 (TTAB 2007). Instead, the application is amended to delete the goods on which the mark had not been used."

Based on Barrington's concessions, the Board found that the Guardians has satisfied their burden to show that there were no genuine disputes of material fact remaining for trial with regard to its nonuse claim, and so the Board granted its motion for partial summary judgment as to nonuse vis-a-vis headbands, shorts, team uniforms, jackets, coats, and pants. It ordered that those goods be deleted from the subject applications.

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TTABlogger comment: A rather feeble attempt at summary judgment, don't you think? Seems like MLB teams think that all they have to do is throw their gloves on the TTAB field and they'll win. How many people do you think would confuse CLEVELAND SPIDERS with CLEVELAND? BTW: the Guardians included a Section 2(a) false connection claim. How many people would connect the mark CLEVELAND SPIDERS with the CLEVELAND GUARDIANS? What do you think a survey would show?

Text Copyright John L. Welch 2024.

TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?

So far this year, the Board has affirmed just over 90% of the Section 2(e)(1) mere descriptiveness refusals reviewed on appeal. Here are three more. How do you think they came out? [Results in first comment].

In re Stephen Van Eynde, Serial No. 90814404 (July 10, 2024) [not precedential] (Opinion by Judge Michael B. Adlin). [Mere descriptiveness refusal of BRKFST KRSPS for breakfast foods, including cereal.]

In re VOTEAPP, Inc., Serial No. 90774555 (July 10, 2024) [not precedential] (Opinion by Judge Martha B. Allard) [Refusal to register VOTEAPP for, inter alia, "Software as a service (SAAS) services featuring software in the field of voting for government, corporate, and consumer use, namely, software that enables users securely, transparently, quickly, and accurately to record ballots and track election results."]

In re Gabriel Sezanayev, Serial No. 90641384 (July 8, 2024) [not precedential] (Opinion by Judge Martha B. Allard) [Mere descriptiveness refusal of the proposed mark THE ORIGINAL PINEAPPLE for “Alcoholic beverages, namely, distilled spirits, cocktails from distilled spirits, liqueurs."]

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TTABlog comment: How did you do? See any WYHA?s

Text Copyright John L. Welch 2024.

TTABlog Test: Three Recent Section 2(d) Appeals For Your Consideration

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 involved marks and the goods/services. Here are three recent TTAB decisions in Section 2(d) appeals. How do you think they came out? [Answers in first comment.]

In re SERO Innovation, LLC, Serial No. 97436057 and 97570427 (July 9, 2024) [not precedential] (Opinion by Judge Christen M. English) [Section 2(d) refusal of the mark SOL in standard character and design form for "sailboats," in view of the registered mark SOLGEAR for, inter alia, retail store services featuring outdoor sports equipment and river gear, including boats.

In re Smith’s Bakeries Inc., Serial No. 97312629 (July 8, 2024) [not precedential] (Opinion by Judge Cindy B. Greenbaum) [Section 2(d) refusal to register the mark shown below left, for baked goods [BAKERIES disclaimed], in view of the registered marks MRS. SMITH'S for "bakery products-namely, frozen pies" and SMITH'S (Stylized) for "Rolls; white bread; hot dog buns; hamburger buns; English muffins."]

International Foodstuffs Co. LLC, Serial No. 97444079 (July 2, 2024) [not precedential] (Opinion by Judge Martha B. Allard) [Section 2(d) refusal of BRONKO for "Chocolates and Chocolate Confectionery Products; Biscuits; cookies; Ice Cream; Pasta," in view of the registered mark BRONCO BERRY SAUCE for "Sauce" [BERRY SAUCE disclaimed].]

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TTABlog comment: Predictions? See any WYHA?s

Text Copyright John L. Welch 2024.

TTAB Says Chutter Still Good Law: Reckless Disregard in Obtaining or Maintaining a Registration is Enough for Fraud

In Chutter, Inc. v. Great Management Group, LLC, the Board ruled that reckless disregard for the truth is sufficient for a finding of fraud on the USPTO. [TTABlogged here]. The CAFC reversed that ruling because Section 14 of the Lanham Act, which lists the bases for cancellation of a registration, does not include fraud committed in connection with a Section 15 incontestability declaration (as opposed to fraud in obtaining a registration). [TTABlogged here]. Here, the Board now confirmed that "Chutter remains good law and binding precedent with respect to its analysis of fraud per se." Ruifei (Shenzhen) Smart Technology Co., Ltd. v. Shenzhen Chengyan Science and Technology Co., Ltd., Cancellation No. 92077931 (July 2, 2024) [not precedential] (Opinion by Judge Christopher C. Larkin).

Petitioner Ruifei claimed that Respondent Shenzhen Chengyan committed fraud on the USPTO in obtaining and maintaining its registration for the mark DISO for “earphones and headphones; portable media players, namely, MP3 players.” [The registration when issued covered a number of additional goods, but those additional items were deleted from the registration after a USPTO audit. See earlier decision TTABlogged here.]

Unlike in Chutter, this case involved a false Section 8 Declaration of Use, not a Section 15 Declaration of Incontestability. It also involved a false Statement of Use submitted during prosecution of the underlying application. The Board observed that "[a] registration may be 'obtained fraudulently' within the meaning of Section 14(3) of the Act based on fraud committed in connection with its issuance or its maintenance. Bose at 1338-39 (citing Torres v. Cantine Torressella S.r.l., 808 F.2d 46, 48 (Fed. Cir. 1986)). [Emphasis supplied].

In Bose, the Federal Circuit left open the question of whether “a submission to the [US]PTO with reckless disregard of its truth or falsity satisfies the intent to deceive requirement.” Bose, 580 F.3d at 1246 n.2. The Board answered that question in Chutter, holding “as a matter of law that reckless disregard satisfies the requisite intent for fraud on the USPTO in trademark matters.”

The Board found that Respondent made false statements in its Statement of Use and in its Section 8 Declaration when it asserted that the subject mark was in use on all the goods listed in its application and its registration as issued. After a USPTO audit of the registration, Respondent deleted all the goods except those for which it could prove use: namely, "earphones and headphones; portable media players, namely, MP3 players."

If Petitioner shows that Respondent committed fraud on the USPTO with respect to any of the goods identified in the ’173 Registration at the time of the fraud, the ’173 Registration must be cancelled as to the handful of goods remaining in the single-class registration at the time of trial even if Respondent did not commit fraud as to those goods per se.

Turning to the critical issue of intent, the Board observed that it was "unaware of any precedential decision post-Bose in which the Board found fraudulent intent in the absence of testimony from the relevant declarant as to his or her state of mind when making false statements to the USPTO." In Chutter and in the NATIONSTAR case, a finding of subjective intent to deceive was based on the deposition testimony of the person who made the false statement.

Here, there was no testimony taken of the persons who made the false statements. The Board refused to infer from the evidence of record that these statements were subjectively intended to deceive the USPTO or in reckless disregard of the truth of the statements.

Petitioner could have deposed CEO Wang and Ms. Jiang to develop direct evidence or better circumstantial evidence regarding the declarants’ respective understanding of the use of the DISO mark, the false statements in the Statement of Use and Section 8 Declaration, and other matters relevant to the declarants’ states of mind, but did not do so.

In sum, Petitioner failed to prove the essential element of fraud: it "failed to carry its heavy burden of showing by clear and convincing evidence that CEO Wang or attorney Jiang intentionally deceived the USPTO, or acted with reckless disregard of the truth, in connection with the preparation and filing of Respondent’s inaccurate Statement of Use and inaccurate Section 8 Declaration.

And so, the Board denied the petition for cancellation.

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TTABlogger comment: This opinion is worth a read. Seems to me it should be precedential for its confirmation of the viability of Chutter.

Three Administrative Trademark Judges Added to TTAB Roster

Chief Judge Gerard F. Rogers has announced the appointment of three Administrative Trademark Judges to the TTAB (see below). By my count, this brings the number of ATJs at the Board to twenty-eight.

Robert Lavache has had a lengthy and successful career at the USPTO. In his former Senior Level (SL) position as the Trademark Legal and Examination Policy Specialist, he supervised the Legal Policy attorneys in Trademarks and provided legal policy advice to USPTO senior executives, the TMEP Editor, the Solicitor’s Office, the Office of Enrollment and Discipline and the Office of Policy and International Affairs. He has advised Trademarks leadership on developments in TTAB and Federal Circuit case law, and served as lead Legal Policy attorney and subject matter expert for the Notice of Proposed Rulemaking and Final Rule that implemented the Trademark Modernization Act; and he has served as supervisor of the Trademarks Special Task Force on Improper Activities, combatting fraudulent and improper trademark filings. Judge Lavache is a graduate of the University of Miami and Cornell Law School.

Mary Beth Myles joined the TTAB as an Interlocutory Attorney in July 2016. Judge Myles has been a frequent participant in TTAB outreach efforts and thereby has educated practitioners about the nuances of TTAB practice and procedure. Most recently, she has served as one of two attorneys on the TTAB’s six-member team overseeing the Final Pretrial Conference Pilot program that involves hands-on case management of more complex TTAB proceedings. She also has worked on the annual update of the TTAB Tips paper used as written material for CLE programs featuring TTAB speakers. Before joining the TTAB, Judge Myles spent eight years in IP and commercial litigation practices. She is a summa cum laude graduate of Bethany College and earned her law degree from Columbia University School of Law.

Lawrence Stanley has excelled during a more than 20-year career practicing IP law, which has included 15 years in an active law practice, teaching law, as well as public speaking and writing, followed by five years as an Interlocutory Attorney at the TTAB. A member of the USPTO Patent Bar, Judge Stanley is well-versed in all types of IP and in all aspects of IP litigation. As an attorney for the TTAB, he has been an active trainer and mentor of newer attorneys, thereby continuing to use skills he demonstrated when mentoring law firm associates and teaching law students. Judge Stanley is a graduate of Indiana University and a summa cum laude graduate of New England School of Law.

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Precedential No. 14: TTAB Affirms Two Expungement Decisions Based on Nonuse of SMARTLOCK for Evaporative Air Coolers

In this appeal from final refusals issued in two expungement proceedings, the Board affirmed the USPTO Director's decision to cancel registrations for the mark SMARTLOCK, in standard character and design form, for "Components for air conditioning and cooling systems, namely, evaporative air coolers." The Board found that Registrant Locus Link USA never used the mark in connection with "evaporative air coolers," and rejected Locus Link's interpretation of the identification of goods. In re Locus Link USA, 2024 USPQ2d 1181 (TTAB 2024) (Expungements Nos. 2022-100137E and 2022-100138E) [precedential] (Opinion by Judge Jennifer L. Elgin).

Expungement proceedings, created by the Trademark Modernization Act of 2020, are ex parte proceedings in which the USPTO may cancel a registration, in whole or in part, if the registered mark has never been used in commerce in connection with some or all of the goods/services identified in the registration. [In contrast, reexamination proceedings concern a registered mark that was not in use as of a specific date: the filing date of a use-based application, or the filing of an amendment to allege use, or before the deadline for filing a statement of use.]

Locus Links's CEO explained that its goods are "refrigerant fittings" for use with HVAC units, but not limited to evaporative air coolers. [See examples below].

Examining Attorney Laura E. Fionda maintained that the subject registrations cover only the specific goods following the term "namely" in the identification of goods: i.e., "evaporative air coolers."

Locus Link agreed that it did not use the marks with finished goods, and so the Board found that "Registrant has not used the SMARTLOCK Marks in commerce in connection with fully manufactured 'evaporative air coolers.'" However, Locus Link insisted on a different interpretation of the identifications: that the identified goods are components for evaporative air coolers.

The Board observed that "use of the word 'namely' . . . is acceptable only if the words that follow it define and fall within the scope of the introductory wording that precedes 'namely' (e.g., 'clothing, namely, shirts')" Furthermore, according to TMEP Section 1402.05(a):

When a mark is used to identify only a component or ingredient of a product, and not the entire product, the identification must (1) precisely set forth the common name of the component or ingredient, (2) indicate that the component or ingredient is sold as a component or ingredient of another finished product, and (3) set forth the common name of the finished product of which the identified component or ingredient forms a part . . . . The identification should leave no doubt that the mark refers only to the component or ingredient and not to the entire product.

The Board agreed with the Examining Attorney that "evaporative air coolers" modifies the otherwise indefinite wording "components for air conditioning systems." "In other words, the identification of goods, as set forth in the ’466 and ’467 Registrations, covers evaporative air coolers that are components of air cooling systems. It does not identify or encompass component parts for evaporative air coolers, such as Registrant’s connectors."

Finally, the Board rejected Locus Link's reliance on the Examining Attorney's acceptance of the specimen of use as validation of its interpretation of the identification of goods. As the Board has often pointed out, it is not bound by prior decisions of Examining Attorneys.

Moreover, the acceptance of specimens by the Examining Attorney does not control the ultimate question of use. Cf. Century 21 Real Estate Corp. v. Century Life of Am., Opp. No. 91075090, 1989 TTAB LEXIS 6, at *3 (TTAB 1989) (“[T]he mere acceptance of specimens by the Examining Attorney does not mandate a finding by us that service mark usage was made.”).

The Board therefore affirmed the decisions to cancel the subject registrations.

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TTABlogger comment: Rather straightforward. Precedential?

TTAB Posts July 2024 Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled five (5) oral hearings for the month of July 2024. The hearings will be held virtually, except for the first one, which will be held in-person at the USPTO's Madison East Building in Alexandria, Virginia. Briefs and other papers for each case may be found at TTABVUE via the links provided.

July 9, 2024 - 11 AM (In person at the USPTO): Paradise Holdings, Inc. v. Neo Nyc inc., Cancellation No. 92078182 [Petition for cancellation of a registration for SEASPICE RESORT WEAR & Design (shown below) for "Bottoms as clothing for pants, shorts, skirts, mini skirts; Tops as clothing for shirts, dresses, pullovers, coverups, rompers" on the ground of likelihood of confusion with petitioner's common law rights to the mark SEASPICE for various clothing items.]

July 10, 2024 - 10 A PM: In re The AZEK Group LLC, Serial No. 97591142 [Section 2(d) refusal of STATEMENT RAIL for "Building products, namely, non-metal railings for decks, porches and stairs as well as non-metal railing accessories, namely, post caps, post sleeves and post skirts" [RAIL disclaimed] in view of the registered mark STATEMENT COLLECTION for, inter alia, non-metal building and construction materials, namely, cladding, trim, panels, planks and boards for exterior application [COLLECTION disclaimed].]

July 17, 2024 - 1 PM: In re H&H Retail Owner, LLC, Serial No. 90119643 [Section 2(d) refusal of OVATION HOLLYWOOD for "Hotel and restaurant services; Restaurant and bar services, including restaurant carryout services" [HOLLYWOOD disclaimed] in view of the registered mark ART OVATION HOTEL for "Hotel services, namely, provision of temporary accommodations, restaurant, bar, café, and cocktail lounge services, and hotel concierge services" [HOTEL disclaimed].]

July 17, 2024 - 1:30 PM: In re H&H Owner, LLC, Serial No. 90119814 [Section 2(d) refusal of OVATION for "Hotel and restaurant services; Hotel, restaurant and bar services; Restaurant and bar services, including restaurant carryout services" in view of the registered mark ART OVATION HOTEL for "Hotel services, namely, provision of temporary accommodations, restaurant, bar, café, and cocktail lounge services, and hotel concierge services" [HOTEL disclaimed].]

July 24, 2024 - 11 AM: Omaha Tree Service, Inc. v. David Steg, Cancellation No. 92079674 [Petition for cancellation of a registration for TREE SERVICES OF OMAHA for "Tree care services" on the grounds of geographical descriptiveness, genericness, and likelihood of confusion with the common law mark OMAHA TREE SERVICE for the same services.]

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TTABlog comment: Any predictions? See any WYHA?s

TTABlog Quarterly Index: April - June 2024

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