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In re SERO Innovation, LLC, Serial No. 97436057 and 97570427 (July 9, 2024) [not precedential] (Opinion by Judge Christen M. English) [Section 2(d) refusal of the mark SOL in standard character and design form for "sailboats," in view of the registered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In re Smith’s Bakeries Inc., Serial No. 97312629 (July 8, 2024) [not precedential] (Opinion by Judge Cindy B. Greenbaum) [Section 2(d) refusal to register the mark shown below left, for baked goods [BAKERIES disclaimed], in view of the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International Foodstuffs Co. LLC, Serial No. 97444079 (July 2, 2024) [not precedential] (Opinion by Judge Martha B. Allard) [Section 2(d) refusal of BRONKO for "Chocolates and Chocolate Confectionery Products; Biscuits; cookies; Ice Cream;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.
posted by John L. Welch @ 7/11/2024
2 comments
2 Comments:
All refusals were affirmed.
In the SOL case, I find this statement to make no sense: "trademarks for goods find their principal use in connection with selling the goods and accordingly marks for goods and marks for the service of selling such goods will have their impact on the purchasing public in the same marketplace". Every seller of goods sells their goods but that is not a service. Not every type of goods commonly also have retail stores under the same name. It boggles my mind why there is essentially a per se rule that "retail sales of ABC" is related to "ABC". The examining attorney's evidence that retail sales of sailboats is related to sailboats was laughable...website for the sailboats that sold them! Whatever happened to the definition of "retail" as the sale of goods "of others"?? How is merely selling ones' goods online with the brand name at the top of the home page considered "retail services"?
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