Wednesday, August 26, 2020

TTABlog Test: How Did these Three Section 2(d) Appeals Come Out?

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. No hints this time. How do you think these came out? [Answers in first comment].

In re Creativity IP PLLC, Serial No. 88120181 (August 20, 2020) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of CREATIVITY IP for "legal services" [IP disclaimed] in view of the registered mark CREATIVITY LAW for "legal services for the enforcement, licensing, use, establishment and maintenance of intellectual property rights" [LAW disclaimed]. Applicant pointed to 15 third-party registrations for marks containing the word "creativity" or "creative," in attempting to show the weakness of the cited mark.].

In re Justice Without Borders, Serial No. 87870907 (August 20, 2020) [non precedential] (Opinion by Judge Albert Zervas) [Section 2(d) refusal of the mark JWB JUSTICE WITHOUT BORDERS & Design, shown below, for "providing legal advice, legal support services, and litigation services in support of migrant workers in the fields of labor exploitation and human trafficking, not including services associated with international humanitarian relief projects or providing medical or health care assistance to victims of disasters and/or conflicts in underdeveloped countries," in view of the registered mark JWB in typed form for "legal services for on-line global computer network." Applicant argued that the globe design and the phrase "Justice Without Borders" are more likely to create an impression on consumers than the letters "JWB."].

In reFGX International, Inc., Serial No. 88033162 (August 24, 2020) [not precedential] (Opinion by Judge Linda A. Kuczma). [Section 2(d) refusal of SUNSENTIALS in view of the registered mark FUN SUN ESSENTIALS, both for sunglasses. Applicant maintained that SUN and ESSENTIALS are weak formatives, and so no one party is entitled to their exclusive use.].

Read comments and post your comment here.

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

Text Copyright John L. Welch 2020.


At 5:39 AM, Blogger John L. Welch said...

All three were affirmed

At 1:55 PM, Blogger Valerie N said...

No surprise.

At 12:26 PM, Anonymous Bob Cumbow said...

This is the first time in weeks I've been wrong. I agreed that 1 and 2 should be affirmed but thought 3 would have been reversed: Highly sophisticated technologies, highly sophisticated (and very different) purchasers, one product in neurosurgery and the other in a dentist's office; and the mark REFLECT creating different impressions in each context--the spinal implant referring to the flexibility of the spinal column, the dental implant referring to shiny white teeth. I don't see a likelihood of confusion on that one.

At 1:18 PM, Anonymous Anonymous said...

The PECAN BAYOU refusal was reversed.

At 2:53 PM, Blogger Heather Bond Vargas, Esq. said...

You gave the Reflect decision more thought than the TTAB Bob!

At 9:09 AM, Anonymous Phoenix Trademark Attorney said...

Anon is right - PECAN was reversed.

At 5:25 PM, Blogger Sylvia Mulholland said...



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