Tuesday, April 30, 2013

Test Your TTAB Judge-Ability: Which One of These Four Section 2(d) Refusals Did the Board Reverse?

In the first two weeks of April, the Board affirmed seven out of eight Section 2(d) likelihood of confusion refusals. Although a small sample, that's consistent with my recent estimate that 90% of Section 2(d) refusals are affirmed by the Board. Here are four of the eight. In this batch, one of the Section 2(d) refusals was reversed. Which one?

In re KW Intellectual Properties, Inc., Serial No. 85402206 (April 5, 2013) [not precedential]. [Refusal to register THE SPIRIT OF LINDY for shirts, t-shirts, and other clothing items, in view of the mark LINDI in stylized form, for identical and related clothing items].

In re Wildgame Innovations, LLC, Serial No. 85136181 (April 9, 2013) [not precedential]. [Refusal of BOOTIE CALL for "hunting game calls" [CALL disclaimed] over BOOTY CALL for fishing tackle].

In re Fona International Inc., Serial No. 85344795 (April 12, 2013) [not precedential]. [Refusal of CONSIDER IT DONE for "business consulting services related to the development and use of flavors" in view of the identical mark for "business consultation services, namely consultation relating to business strategy, including assessing a company's existing operations, and advising on the development of technology-related methodologies in the field of project management; consultation relating to outsourcing of computerized business functions; business consultation relating to the fields of electronic commerce and electronic business; business consultation relating to the field of on-line business transactions, namely marketing, order processing, and order fulfillment; customer relationship management; and employee leasing services, namely, providing information technology professionals to others."

In re Melanie Hart, Serial No. 77909807 (April 12, 2013) [not precedential]. [Refusal of CALLULA LILLEBELLE for "towels that may be worn as a dress or similar garment; dresses; skirts; slacks," in light of the registered mark KALULA KIDS for "children’s clothing, namely, girls' dresses, tops, pants, and skirts, separately and in sets" [KIDS disclaimed]].

Read comments and post your comment here.

Text Copyright John L. Welch 2013.


At 9:47 AM, Anonymous Anonymous said...

THE SPIRIT OF LINDY has a completely different commercial impression than LINDI.

At 12:23 PM, Anonymous Anonymous said...

Is it the CONSIDER IT DONE mark?

At 7:19 PM, Anonymous Anonymous said...

I'm guessing that the board saw LINDI as a shortened version of THE SPIRIT OF LINDY along with a sense that consumers might associate LINDI with the aviator; BOOTY CALL and BOOTIE CALL are near identical marks for closely related goods; although CONSIDER IT DONE and CONSIDER IT (Information Technology) appear to be identical the overall commercial impression may be different enough to avoid confusion with business services involved with "flavors"; CALLULA LILLIEBELLE and KALULA KIDS are too similar in sound and KIDS appears to be a size designation for KALULA. So was CONSIDER IT DONE reversed?

At 7:35 PM, Blogger John L. Welch said...

CONSIDER IT DONE was not reversed

At 10:38 PM, Anonymous Anonymous said...

Yay. Got it right on my second guess. The spirits must have moved the Board because the marks are quite similar! Reading the decision, you would never guess they reversed until the end when they simply said, despite the fact everything was similar, the marks could still be distinguished. As my kids say, "whatever."


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