TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Overturned on Appeal?
The TTAB affirmance rate for Section 2(d) appeals continues to run at about 90% so far this year. Here are three recent Board decisions. At least one of them resulted in a reversal. How do you think they came out?
In re Kalsec, Incorporated, Serial No. 97346119 (September 26, 2024) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of the mark DURASHIELD for "chemical additives for use in the manufacture of food, beverages, animal feed and pharmaceuticals" in view of the registered mark DURASHIELD PLUS for "liquid chemical compound for preserving, protecting and soil retarding of floor coverings, upholstery, furnishings, clothing, lamps, blinds, window shades, wallpaper, painted surfaces and other interior fabrics, materials and surfaces."]
In re Mick Schumacher, Serial No. 79324040 (September 27, 2024) [not precedential] (Opinion by Judge Michael B. Adlin) [Section 2(d) refusal of the mark shown below left, for "luggage; schoolbags; backpacks;" "textile flags and pennants;" and various clothing items, including jackets, shirts, and headwear, in view of the registered marks FORTY SEVEN, 47, '47, and the mark shown below right for, inter alia, backpacks, duffel bags, cloth pennants; felt pennants, and various clothing items, including jackets, shirts, and headwear.]
In re Mulligan Golf Gift Store LLC, Serial No. 97669290 (September 30, 2024) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of the mark shown below, for "Retail store services, featuring sporting goods, novelties, souvenirs, office gifts, golf equipment, apparel and accessories, custom logo golf balls, home office decorations, books, games, pranks and novelty gifts" [GOLF GIFT STORE EST. 2021 disclaimed] in view of the registered mark MULLIGANS for “Provision of an on-line marketplace for buyers and sellers of golf equipment."]
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Text Copyright John L. Welch 2024.
posted by John L. Welch @ 10/04/2024
5 comments
5 Comments:
The first two were affirmed. The third was reversed.
How can it be possible that the trade channels for the respective goods be overlapping in the DURASHIELD case? The Board's analysis of that factor was strained. While it might be true that there are chemicals that are used for both of the purposes set forth in the registration and application (which are so very different), that does not mean that the purchasers of the respective goods would be the same for each use. Also, it seems unfair to use big company house marks as evidence of third party use to prove relatedness, especially when the evidence shows that the two goods have different product marks as it did in some of the evidence. The Board got it wrong in my opinion.
Mulligan for golf equipment doesn't violate Mulligans for golf equipment. Got it. Makes perfect sense.
What Gene said.
I agree with Eddie
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