TTABlog Test: Which of these Three Section 2(d) Refusals Was/Were Reversed?
Here are three recent TTAB Decisions in Section 2(d) appeals. At least one of the appeals led to a reversal. How do you think they came out?
In re Liberty Orchards Company. Inc, Serial No. 97840459 (September 3, 2024) [not precedential] (Opinion by Judge Catherine Dugan O'Connor). [Section 2(d) refusal of COCOZEN (Stylized) for "Coconut milk; coconut milk for culinary purposes; coconut milk-based beverages; dried coconuts; grated coconut; coconut oil for food; coconut butter for food; coconut chips; pressed fruit paste; coconut, processed; condensed milk," in Class 29, and "coconut water; coconut-based beverages not being milk substitutes, in Class 32, in view of the registered mark COCOZEN for "Dietary supplements."]
In re Brockway Ferry Corp DBA Leather Man Ltd., Serial No. 90127025 (September 3, 2024) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of the mark shown first below, for "Belts; Belts for clothing; Belts made of leather; Belts made out of cloth; Belts of textile; Fabric belts; Leather belts; Waist belts” [LEATHER, LTD and ESSEX, CT disclaimed] in view of the registered marks shown second below, for "Clothing made in whole or part of leather, namely, coats, jackets, belts, shoes, skirts, and ties."]
In re NOMVDIC Corporation, Serial Nos. 97087812, 97087849, 97088315, 97088393 (September 4, 2024) [not precedential] (Opinion by Judge Karen S. Kuhlke) [Section 2(d) refusals of the marks NOMVDIC2 and NOMVDIC-INNOVATION and the two stylized/design marks shown below, for "Projectors, namely, multimedia projectors, cinematographic projectors, picture projectors, video projectors; transparency projection apparatus, slide projection apparatus and photograph projection apparatus; projection screens; computer hardware; computer monitors; . . . ; computer keyboards; computer memory devices; computers," in view of the registered mark NOMADIC GEAR for “mounting devices for photographic equipment; tripods; monopods for cameras and cell phones; camera straps; cases for photographic apparatus" [GEAR DISCLAIMED].
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TTABlogger comment: WYHA?
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 9/09/2024
7 comments
7 Comments:
The first one was affirmed; the second and third ones were reversed.
The NOMVDIC case is no less than shocking to anyone familiar with how the TTAB usually approaches cases like this. Also, would anyone outside of Essex have ever heard of the legend of the Leather Man? The last three reversals have me thinking I'm in opposite world.
Very surprised by the last, even after reading the opinion. First thing I saw was "nomadic."
"When we consider the mark as a whole, the term “Leather” does not take on its ordinary meaning, but rather is used to evoke the imagery of the legend of the Leather Man "
What a load of garbage. Yeah, that's what people think when they see his mark, yeah sure.
On first glance I would have said all were affirmed.
"As to the excerpt from Applicant’s website, although it suggests Applicant’s products maybe used outside of the home, and while such goods may be relevant to understanding the perceived connotation and commercial impression of the word NOMVDIC, given our finding consumers will take the word as it appears, this additional evidence is not sufficient to turn the word into NOMADIC. "
Really? Then how are consumers going to pronounce the first one? Are we now going to start playing this game where we take a mark, put a symbol in place of one letter and it passes? How many different ways can I replace the i in Nike and it's now going to pass?
Clearly, it does not take much thought to realize that NOMVDIC simply turned the A upside down and made an intentional misspelling of NOMADIC. How else could you pronounce it? NOMVEDIC? I do not think so. The company's slogan is "Explore Beyond Imagination" clearly a reference to being a "nomad".
To avoid the obvious and what should have been an overriding similarity factor, the Board says:
"..we find it to be insufficient to make a determination that consumers are likely to take NOMVDIC as NOMADIC when viewing the mark in connection with the projectors and other goods. On this record, we find consumers are more likely to take NOMVDIC as is and accept the fanciful term."
The problem was there was no record at all on which the Board could make such a claim, the Board just made such a statement and called it "the record."
Really baffling decision.
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