Thursday, December 14, 2017

TTAB Test: Which Of These Three Section 2(d) Refusals Was Reversed?

You may recall that a TTAB judge once remarked that one can predict the outcome of a Section 2(d) appeal 95% of the time just by looking at the marks and the goods or services. Here for your consideration are three TTAB decisions rendered two days ago in Section 2(d) appeals. One was reversed. Which one? [Answer in first comment].

In re Northern Brewer, LLC, Serial Nos. 86973148 (December 12, 2017) [not precedential] (Opinion by Judge Francie R. Gorowitz) [Section 2(d) refusal to register the mark TROPICAL BLISS for kits for making wine, in view of the registered mark BLISS for wines].

In re Hy-Vee Inc., Serial No. 86749605 (December 12, 2017) [not precedential] (Opinion by Judge Frances Wolfson) [Section 2(d) refusal of THE SOAP & WATER COMPANY for "retail store service within a section of a retail supermarket featuring bath and body products" [SOAP and COMPANY disclaimed], in view of the registered mark SOAP & WATER CLEAN WATER THROUGH SOAP for "soaps for personal use; personal care products, namely, body lotion, bath gels, shower gels, body sprays, bath soaps, body scrubs and cosmetic preparations for cosmetic body wrap applications for general personal care" and for "retail store services and online retail store services featuring cosmetics, skin care and personal care products" [SOAP disclaimed]].

In re European Specialties, LLC DBA Holy Cow! Kosher and Albert Mayzels, Serial No. 86859900 (December 13, 2017) [not precedential] (Opinion by Judge Cindy B. Greenbaum) [Section 2(d) refusal to register the mark HOLY COW KOSHER for certified Kosher meats [KOSHER disclaimed], in view of the registered mark HOLY COW for "sandwich spreads, namely, sweet fruit based spread and savory vegetable based spread" and "condiments, namely, ketchup, mustard, and mint; spices; sauces for curry and rice"].

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Text Copyright John L. Welch 2017.


At 6:50 AM, Blogger John L. Welch said...

The TROPICAL BLISS refusal was reversed.

At 9:09 AM, Anonymous Paul Reidl said...

Got it right!

At 10:45 AM, Blogger Dave Oppenhuizen said...

The reason it has been said that 95% of 2(d) appeals can be determined by just looking at the marks and the goods/services is because the TTAB gives very little weight to the other DuPont factors.

I would like to see them giving more consideration to factors such as strength of the registered mark, as well as third party usage of the common portion between the registered and applied-for marks.

I don't think Santa will be bringing that present for me.

At 4:57 PM, Anonymous Anonymous said...

"There is no viable distinction in the context of the second DuPont factor between retail store services provided by way of a supermarket and retail store services provided inside a supermarket."


At 7:43 PM, Blogger Pamela Chestek said...



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