TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Overturned on Appeal?
The TTAB affirmance rate for Section 2(d) appeals this year continues to hover around 90%. Here are three recent Board decisions, at least one of which reversed the refusal. How do you think they came out? [Answer in first comment].
In re Vermutería de Galicia, S.L., Serial No. 90385649 (November 29, 2024) [not precedential] (Opinion by Judge Cynthia C. Lynch). [Section 2(d) refusal of the word-and-design mark shown below, for "vermouth" in view of the registered mark PETRONI for "wine."]
In re AMVAC Chemical Corporation, Serial No. 97631691 (November 26, 2024) [not precedential] (Opinion by Judge Robert Lavache). [Section 2(d) refusal of the word-and-design mark shown below, for "Chemical analysis; Chemical research; Chemical research and analysis; Chemical research services" in view of the registered mark SMARTSOIL for "Printed reports, namely, computer generated reports of field soil profiles" and for "services in the field of soil and crop management by providing printed reports of soil profiles."]
In re Mark Cachia, Serial No. 88276115 (November 25, 2024) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of the mark SCYTALE for advertising and promotional services, business management, and financial and investment services, in view of the identical mark registered for consulting and informational services in the field of open-source software.]
Read comments and post your comment here.
TTABlogger comment: How did you do?
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 12/03/2024
5 comments
5 Comments:
The third one was reversed
Reading the case that was reversed reminded me somewhat painfully of what I see way too often in my own practice, which is examining attorneys telling me that their evidence shows that the involved services are related, when it simply does not. They should be required to point out exactly where in the evidence it shows what they clam it shows. Forcing me to go on a fishing expedition is salt in the wound. This case is particularly egregious in this regard (NONE of the evidence showed the services of the cited registration). I wish I knew whether the examining attorneys who do this even review the evidence or if instead they just do some type of a word search and blindly submit website pages from the results. I hate being so negative (and to be fair, I often am amazed that EAs can do what they do every day...I'm not sure I could deal with the minutiae that they must on every application) but this is by far my biggest complaint with the examination process and wonder if there is a general consensus that this is unfortunately way too common.
In response to Gene, I received a refusal of a mark used on wine based on a similar mark used on chocolate. The evidence? Gifts baskets from the likes of Harry & David that contain both wine and chocolate. Clearly the retailer sells both, packaged together. However, if you accept this, the holiday tower of boxes is evidence that cheese and crackers, meat, wine, nuts, candy, etc. are related for the purposes of 2(d). I feel the Examiners use the "sold together" evidence too broadly in finding that the goods are related. Another example is that all wineries sell souvenir t-shirts etc. That should not be enough to find Class 25 and 33 are "related." I would be interested if anyone had experience or case law on this. I am familiar with the "something more" requirement centered around restaurant services, but that is vague and difficult to argue. A holding along the lines of - just because cheese and crackers are consumed together does not mean that they are produced or purchased together. We have moved, in the US economy, from several stops at several speciality stores, like the butcher, to large one stop mega stores like Costco, and then to online stores like Amazon that sell "everything." Where is the pushback that sold-together is not sufficient to find the goods are related?
Thanks,
Clinton
Am I reading these wrong? It looks like the second one was reversed. The first and third were affirmed.
Boy did I get that wrong. I thought for sure the third was not the one which was reversed.
Post a Comment
<< Home