Thursday, September 03, 2020

TTABlog Test: Try Your Luck on these Three Recent Section 2(d) Appeals

According to one TTAB judge, you 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In re Horizon Group USA, Inc., Serial No. 87901706 (September 1, 2020) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of SUGAR BOMBS for "bath bombs" in view of the registered mark SUGARBOMB for "cosmetics." Applicant, citing In re St. Helena Hosp., 113 USPQ2d 1082 (Fed. Cir. 2014), contended that the USPTO is required to show “something more” than the mere fact that the goods are used together.].

In re Luxe Energy, LLC, Serial No. 88064929 (September 1, 2020) [not precedential] (Opinion by Judge Albert Zervas). [Section 2(d) refusal of PECAN BAYOU ENERGY & Design, for "Drilling of deep oil or gas wells; Drilling of wells; Extraction of oil and gas; Extraction of natural gas; Oil and gas drilling; Well improvement services, namely, hydraulic fracturing of subsurface geologic formations to enhance well production; Laying and construction of pipelines; Oil and gas pipeline construction; Oil and gas pipeline maintenance; Pipeline construction and maintenance" [PECAN BAYOU ENERGY disclaimed] in view of the registered mark PECAN PIPELINE & Design for "natural gas transmission” and "compression and conditioning of natural gas" [PIPELINE disclaimed]. Applicant argued that the marks have different connotations, since PECAN BAYOU refers to a specific geographical location.].

In re Globus Medical, Inc., Serial No. 88465873 (September 1, 2020) [not precedential] (Opinion by Judge Jyll Taylor). [Section 2(d) refusal of REFLECT for a "surgical system in the nature of a surgical implant for use with the spine composed of artificial materials" in view of the identical mark registered for "dental implants." Applicant contended that "'Reflect' is a commonly used term for all types of goods and services, and therefore consumers are not likely to be confused as to the source of products identified under Applicant’s mark and the Registrant’s mark, because they share this term."].

Read comments and post your comment here.

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

Text Copyright John L. Welch 2020.


At 6:23 AM, Anonymous Anonymous said...

The Pecan case was reversed. The other two were affirmed.

At 8:45 AM, Blogger Gene Bolmarcich, Esq. said...

I think this judge of whom you often speak only existed in a dream of yours. I defy any experienced trademark attorney to do better than a coin flip. Dental implants and spinal implants are related goods? "We have some good news and some bad news, Mr. Smith...your spine is still crooked but if you could only see how white it looks!" Can't wait to look at the evidence in that case.

At 2:10 PM, Blogger John L. Welch said...

Gene, I did not make that up. I'm not going to identify the judge, however.

At 8:59 AM, Blogger Gene Bolmarcich, Esq. said...

I was kidding John. I know you actually heard that but I was just observing how difficult it is even for the best of us, like myself ;)


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