TTABlog Quarterly Index: July - September 2019

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Section 2(a) - Deceptiveness:

• TTABlog Test: Is “Pili” Deceptive for Cosmetics Not Containing Pili Oil?

Section 2(a) - False Association:

• TTAB Affirms Section 2(a) False Connection Refusal of CALIFORNIA BEEMERS for Auto Dealership
• Precedential No. 25: TTAB Grants Section 2(a) Cancellation Petition: SCHIEDMAYER for Pianos Falsely Suggests a Connection with Petitioner

Section 2(d) - Likelihood of Confusion:

• TTABlog Test: Is This Fish Hook Design Mark for Clothing Confusable with "VF" for Retail Clothing Services? [Yes]
• TTABlog Test: Is This Word+Design Mark for Whiskey Confusable with "OUTLAW" for Alcoholic Beverages? [Yes]
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Come Out?
• TTABlog Test: Is "ISABEL MORANT" Confusable with "MORANT" for Perfumes and Cosmetics? [Yes]
• TTAB Finds "LINGO BUS" for Language Education Communication Services Confusable with "LINGO" for Telecommunication Services
• "UHJ" Confusable with "UNIVERSAL HOUSE OF JUSTICE" for Religious Services, Says TTAB
• TTABlog Test: Is "HYDRAPORE" for Breathable Waterproof Fabric Confusable with "HYDRO PORE" for Clothing? [Yes]
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• Precedential No. 24: RICHARD MAGAZINE Not Confusable With RICARDO for Related Services, Says TTAB
• TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?
• Precedential No. 22: PIERCE-ARROW for Autos Confusable With PIERCE ARROW SOCIETY, Says TTAB
• TTABlog Test: Are These Two Four-Legged Animal Design Marks Confusable for Clothing?
• TTABlog Test: Are These Two "CANNONBALL" Marks Confusable for Beer? [no]
• TTABlog Test: Is "KP QUIK STOP & Design" Confusable With KWIK STOP for Convenience Stores? [No]
• Fame of VOLVO Mark Brings Section 2(d) Victory over WOLVOL for Computers
• TTABlog Test: Is "LIQUOR SLINGER DISTILLING" for Liquor Confusable with "SLINGER" for Shot Glasses? [Yes]
• TTAB Finds WIZGEAR Confusable with THE WIZ and NOBODY BEATS THE WIZ, Denies Abandonment and Fraud Counterclaims
• SMART WIFI Confusable With WI-FI Certification Mark, Says TTAB
• TTABlog Test: Is VITAL FLORA for Pet Supplements Confusable With FLORAVITAL for Supplements? [Yes]
• TTAB Reverses Section 2(d) Refusal: Goods Unrelated and Consumers Sophisticated
• TTABlog Test: Are Packaged Sprits and Rum Related to Restaurant Services Under Section 2(d)? [Yes]
• TTABlog Test: Is MAIN LINE REFRESH Confusable With MAIN LINE HEALTH or MAIN LINE PLASTIC SURGERY? [No]

Section 2(e)(1) - Mere Descriptiveness:

• TTAB Sustains Section 2(e)(1) Opposition, Finding "IR DEFENSE" Merely Descriptive of Protective Beauty Serums
• TTAB Finds SKEETER BAND Merely Descriptive of . . . Guess What?
• Precedential No. 19: TTAB Finds Certification Mark Merely Descriptive, Lacking Acquired Distinctiveness
• Precedential No. 18: TTAB Affirms Trifusal of SCOOP for Ice Cream: Mere Descriptiveness, Failure-to-Function, and Unacceptable Specimen
• TTABlog Test: How Did These Three Mere Descriptiveness Appeals Come Out?

Section 2(e)(4) - Primarily Merely a Surname

• TTABlog Test: Is "KERRIDGE COMMERCIAL SYSTEMS" Primarily Merely a Surname? [Yes]

Section 2(e)(5) - Functionality:

• Some Thoughts on Why Product Configuration Marks Seldom Survive TTAB Scrutiny
• Precedential No. 23: TTAB Affirms Section 2(e)(5) Functionality Refusal of Umbrella Configuration
• TTAB Finds Wedge Shape for Yoga Blocks Functional Under Section 2(e)(5)
• Package Configuration Mark for Canned Fish Deemed Non-Functional but Lacks Acquired Distinctiveness, Says TTAB

Genericness:

• On Remand, TTAB Finds CORN THINS and RICE THINS Generic for a Sub-Category of Crackers
• TTAB Finds "BIG SIX" Generic for . . . . Guess What?
• Precedential No. 21: TTAB Finds MALAI Generic for Ice Cream

Nonuse/Specimen of Use/Failure to Function:

• TTAB Says Series of PREDICTIVE ENTREPRENEUR Educational Lectures Is Not a Single Work
• TTAB Affirms Two More Failure-to-Function Refusals
• TTAB Affirms Refusal of THERAFIT Because it Identifies a Component, Not Applicant's Bed Sheets
• Single Book Title Fails to Function as a Trademark, Says TTAB
• TTAB Affirms Rejection of Specimens That Do Not Associate the Mark with the Goods
• Precedential No. 17: Specimens Fail to Show Use of Mark for Retail Store Services, Says TTAB
• TTAB Affirms Failure-to-Function Refusal of Graphic Tool Used By DJ's For Harmonic Compatability
• WORLD'S BEST DOWN Incapable of Functioning as a Trademark for Bedding Containing Down, Says TTAB
• Ubiquitous "Uncle Sam" Image Fails to Function as a Trademark , Says TTAB
• "100% REAL CALLINECTES CRAB FROM NORTH AMERICA" Fails to Function as a Trademark for Crabmeat, Says TTAB
• TTABlog Test: Is This Electronic Brochure an Acceptable Specimen for Billboard Monitoring Services?
• Precedential No. 18: TTAB Affirms Trifusal of SCOOP for Ice Cream: Mere Descriptiveness, Failure-to-Function, and Unacceptable Specimen
• “QUESTION OF THE DAY” Fails to Function as a Mark for a Trivia Website, Says TTAB

Ownership:

• TTAB Sustains Opposition to HOLLYWOOD HOTEL on Non-Ownership Ground

Unlawful Use:

• Marijuana Vaporizers Are (Still) Illegal Under CSA: TTAB Affirms Two “JUJU” Refusals

Discovery/Evidence/Procedure:

• TTAB Affirms Two More Failure-to-Function Refusals
• Precedential No. 27: TTAB Excludes Evidence Due to Spoliation, But Declines to Enter Judgment as a Sanction
• Precedential No. 26: TTAB Dismisses Cancellation Proceeding Due to Petitioner's Fabrication of Evidence
• TTAB Dismisses YOGOLÉ Opposition: Opposer Failed to Prove Standing
• Precedential No. 20: TTAB Declines to Strike Summary Judgment Motion as Untimely After Respondent Consented to Extension
• Precedential No. 16: Options for Cross-Exam of Foreign Trial Witness Are Limited, Says TTAB

CAFC Opinions:

• CAFC Affirms TTAB: Appellant Waived Arguments by not Raising Them at the Board
• CAFC Affirms TTAB: "ARTISAN NY & Design" Confusable With "ARTESANO NEW YORK CITY" for Clothing
• CAFC Affirms TTAB: Louis Vuitton's APOGÉE for Perfume Confusable with APHOGEE for Hair Products

Other:

• TTAB Posts October 2019 Hearing Schedule
• Griff Thomas Reports On "DENIM & CO." Oral Hearing
• TTAB Posts September 2019 Hearing Schedule
• USPTO Examination Guide: Requirement of U.S. Licensed Attorney for Foreign Trademark Applicants and Registrants
• Current Roster of TTAB Judges (August 2019)
• TTAB Posts August 2019 Hearing Schedule

Text Copyright John L. Welch 2019.