Monday, December 14, 2015

TTAB Test: Which One of these Three Section 2(d) Refusals Was Reversed?

I once heard a TTAB judge say that the outcome of nearly all Section 2(d) likelihood of confusion cases can be predicted just by looking at the marks and the identified goods/services, without more. Well, try your potential judicial skills on these three appeals. Which one was reversed. [Answer in first comment].

In re DRHORSEPOWER, INC., Serial No. 77505597 (December 4, 2015) [not precedential]. [Refusal to register the mark shown below, in view of the registered mark HORSEPOWER ENERGY DRINKS, both for energy drinks [ENERGY DRINKS disclaimed in the cited mark].

In re Murad, Inc., Serial No. 86286112 (December 9, 2015) [not precedential]. [Refusal to register INVISIBLUR PERFECTING SHIELD for "Nonmedicated skin care preparations, namely, creams, lotions, gels, toners, cleaners and peels" [PERFECTING SHIELD disclaimed], in view of the registered mark INVISIBLEND for "cosmetic creams; cosmetic creams for skin care; cosmetic preparations for skin care; face creams for cosmetic use"].

In re Americas Health and Wellness Fund LLC, Serial No. 86265852 (December 11, 2015) [not precedential]. [Refusal to register LUBDUB for various goods and services in classes 5, 29, 32, 35, 43, and 44, including nutritionally fortified beverages, fruit-based beverages, retail store service featuring vitamin supplements, and juice bar services, in view of the registered mark DUB for non-alcoholic energy drinks.

Read comments and post your comment here.

TTABlog comment: Are you keeping track of your success rate on these TTAB tests?

Text Copyright John L. Welch 2015.


At 5:48 AM, Blogger John L. Welch said...

The LUB DUB refusal was reversed.

At 8:35 AM, Blogger Brad Salai said...

in a lot of cases, that go the other way, the Board points out that identical goods lessens the degree of similarity required. That wasn't even mentioned.
Although I hate to get these wrong, which I did, again, it is really troublesome that we who have to give advice find it so hard to predict the results.
Maybe that's just me, and everyone else got it right.


At 10:21 AM, Anonymous Anonymous said...

Brad, don't feel bad. I thought the Invisiblur case would be reversed.

At 3:09 PM, Anonymous Anonymous said...

I went with INVISIBLUR.

All tough choices though. I would have gone with none, if I had not known one was reversed.

At 4:02 PM, Anonymous Anonymous said...

Would it have been reversed if it were LUB DUB instead of LUBDUB?

At 4:47 PM, Anonymous Anonymous said...

I went with INVISIBLUR too.

At 1:14 PM, Blogger TMAttorneyHeller said...

I went with Invisblur. As I tell my clients, you can get different opinions from different trademark attorneys.


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