TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
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. Of course, if you just said "affirmed" you'd be right about 89.5% of the time. Anyway, here are three Board decisions issued two days ago. No hints this time. How do you think they came out? [Answer in first comment].
In re Eastside Food Cooperative, Serial No. 97253512 (January 22, 2025) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of the mark EASTSIDE FOOD CO-OP & Design for "retail grocery store services, namely, cooperative grocery store services provided by a food distribution outlet organized as a cooperative owned and governed by its members" [FOOD CO-OP disclaimed] in view of the registered mark EASTSIDE MARKETPLACE for "supermarkets" [MARKETPLACE disclaimed].]
In re ADCO Global, Inc., Serial No. 97452377 (January 22, 2025) [not precedential] (Opinion by Judge David K. Heasley) [Section 2(d) refusal of the mark SOIL SWITCH for "plant growth nutrients" [SOIL disclaimed] in view of the registered mark GREENSWITCH for, inter alia, "fertilizers, liquid fertilizers; phosphates; biostimulants being plant growth stimulants for use on plants or in soils for the regulation of physiological processes in plants, including growth, for crop improvement."]
In re Unanimous Media LLC, Serial No. 97529322 (January 22, 2025) [not precedential] (Opinion by Judge Karen S. Kuhlke). [Section 2(d) refusal of the mark UNANIMOUS PUBLISHING & Design for "Book publishing; Publishing of books, e-books and audio books" [PUBLISHING disclaimed] in view of the registered mark UNANIMOUS GAMES for, inter alia, "development, creation, production and post-production services of multimedia entertainment content” and for e-sport gaming services. [GAMES disclaimed]].
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TTABlogger comment: How did you do? See any WYHA?s?
Text Copyright John L. Welch 2025.
posted by John L. Welch @ 1/24/2025
7 comments
7 Comments:
All three were affirmed
Geez. I was 0-3 with my guesses. I need to tweak my mindset into sdmitting to myself that the PTO is getting tougher on examination, especially whenever it can cop out and base decisions on third party uses.
Makes sense. Simple. Consistent. Easy to follow. Use any major word in another's mark and you can't have it. Doesn't matter if it's the first word, middle word or last word.
Then, all of a sudden of out nowhere, that's no longer the rule--but only every now and then.
In my opinion, number 2 should have been reversed just looking at the two per the judge's comment on by looking at the mark. But I did not read the opinion so there may have been other evidence entered that could support the opinion.
At first blush, I agreed but then realized "Soil" had beeb "properly" disclaimed. Just spitballing and wonder if the result would be different had the mark been SOILSWITCh (concatenated)?
Without reading any of the cases, I initially thought that someone should not have exclusive rights to EASTSIDE, but given nearly identical services, the affirmation makes sense. Regarding SWITCH v GREENSWITCH for similar services, that decision makes sense. Finally, I thought if there was a reversal, it would be the last. Specifically, despite the same leading terms, publishing and e-sport gaming services may be sufficiently dissimilar. I suspect the nearly identical marks played a part like the almost identical service in the first.
2 out of 3, but I wish we could get the reasoning right here in the commented answer! I too felt like number 2 could have been reversed, but I'm really not sure.
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