Thursday, December 12, 2019

TTABlog Test: Three Recent Section 2(d) Appeals

A TTAB judge once said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three recent decisions in appeals from Section 2(d) refusals. How do you think these came out? [Answers in first comment].

In re Antonio F. Domingues and Kathy J. Bruzesse, Serial Nos. 87553246 and 87553279 (November 27, 2019) [not precedential] (Opinion by Judge Frances Wolfson). [Section 2(d) refusal of FORTTUNA FOODS, in standard character and design form, for "Cakes; Candy; Candy bars; Chocolate; Chocolate bars; Chocolate confection" [FOODS disclaimed], in view of the registered mark FORTUNA (Stylized) for, inter alia, "Candied fruit snacks, nut-based snack foods, sesame oil, quail eggs, powdered milk for food purposes, dairy-based food beverages, fruit-based food beverages." Applicants argued that the unconventional spelling of FORTTUNA distinguished the marks and that registrant sells its goods only in niche Asian markets.]

In re Killeen Mayo Car Wash, LLC, Serial No. 87597456 (December 3, 2019) [not precedential] (Opinion by Judge Angela Lykos).). [Section 2(d) refusal of the word+design mark shown below, for "automobile cleaning and car washing" in view of the registered mark GALAXY for "car wash services." Applicant contended that the additional wording and the design element in its mark sufficed to distinguish it from the cited mark.]

In re Immobiliare M.V. S.R.L., Serial No. 87791970 (March 20, 2020) [not precedential] (Opinion by Judge Jyll Taylor) [Section 2(d) refusal of PARC & LEX (and design) for "Clothing, namely, t-shirts, sweatshirts, skirts, pants, jeans, coats, dresses, underwear, tops and bottoms; headwear; footwear," in light of the registered mark PARK & LEX, in standard characters, for "Jewelry, namely,necklaces, bracelets and earrings." Applicant asserted that consumers will pronounce PARC and Park differently, and that registrant's fine jewelry, inspired by New York, is sold in a different trade channel than its own mass clothing apparel made in Los Angeles.]

Read comments and post your comment here.

TTABlog comment: How did you do? Any WYHAs here?

Text Copyright John L. Welch 2019.


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

All three Section 2(d) refusals were affirmed by the Board.

At 7:28 AM, Blogger Carole Barrett said...

No surprises.

At 9:06 AM, Anonymous Anonymous said...


At 10:50 AM, Blogger TMAttorneyHeller said...

Agree No surprises

At 1:39 PM, Blogger Valerie N said...

Agree, all WYHAs, or in these cases, WDYA? (why DID you appeal?)

At 8:08 AM, Anonymous Anonymous said...

Applicant's argument that consumers will pronounce “PARC” with a French pronunciation rather than "Park" reminds me of that classic and underrated movie Better Off Dead. I give your "Fraunch Fries," "Fraunch Dressing," and "Fraunch Bread":

At 11:12 AM, Blogger Miriam Richter, Esq. said...

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