TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Overturned on Appeal?
A TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal about 95% of the time just by looking at the marks and the goods/services. Here are three recent Board decisions, at least one of which resulted in a reversal. How do you think they came out?
In re Livewire Drinks, Inc., Serial No. 88795611 (October 4, 2024) [not precedential] (Opinion by Judge Jessica B. Bradley). [Section 2(d) refusal of the mark LIVEWIRE for "Alcoholic beverages, not including beer" in view of the registered mark MOUNTAIN DEW LIVEWIRE for "soft drinks, and syrups and concentrates for making the same."]
In re Everwest Technologies - FZCO, Serial Nos. 97417414 and 97417422 (October 2, 2024) [not precedential] (Opinion by Judge Jennifer L. Elgin) [Section 2(d) refusals of the mark MYQRCODE.COM in standard characters and in the design form shown below, for "Providing on-line non-downloadable software for generating machine-readable barcodes; Software as a service (SAAS) services featuring software for generating machine-readable barcodes” (both with QRCODE disclaimed), in view of the registered mark QR CODE (on the Supplemental Register) for in-part legally identical services.]
In re New Roots Herbal Inc., Serial No. 97205991 (September 30, 2024) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal of the mark PROBIOTIC INTENSITY for "Dietary and nutritional supplements containing probiotics for humans; Probiotic supplements for humans" (PROBIOTIC disclaimed) in view of the registered mark INN TENSITY for "dietary supplements."]
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Text Copyright John L. Welch 2024.
posted by John L. Welch @ 10/08/2024
5 comments
5 Comments:
I guessed correctly. Thank you by the way for doing these.
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The first and third were affirmed, the second reversed
The Board wrote all this to justify conflating soft drinks and soda:
THE AMERICAN HERITAGE DICTIONARY defines “soft drink” as “[a] nonalcoholic, flavored, carbonated beverage, usually commercially prepared and sold in bottles or cans” and states that it is “also called regionally . . . soda.” (https://www.ahdictionary.com, accessed October 1, 2024). ). The Board may take judicial notice of dictionary evidence, In re Cordua Rests. LP, Ser. No. 85214191, 2014 TTAB LEXIS 94, at *6 n.4 (TTAB 2014), aff’d, 823 F.3d 594 (Fed. Cir. 2016), including from online dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, Ser. No. 75788830, 2006 TTAB LEXIS 136, at *6-9 (TTAB 2006).
lol.
And then proceeds to further conflate this definition of "soda," a "flavored, carbonated beverage," with the "soda" as used in cocktail recipes, which is *unflavored* carbonated *water*.
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