TTABlog Test: How Did These Three Section 2(d) Appeals Turn 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In re Fast Casual Concepts Inc., Serial No. 88403075 (October 2, 2020) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal of the mark shown immediately below, for "restaurant services" in view of the registered mark HOLY COW! for "bar and restaurant services." Applicant pointed to seven third-party uses of "HOLY COW" in connection with restaurants services in an effort to show the weakness of the cited mark, and it argued that the marks have different connotations and commercial impressions because the exclamation HOLY COW! in Registrant’s marks is a reference to a phrase used by a famous baseball announcer Harry Caray.].

In re Kendall S. Oliver, Serial No. 88453982 (September 30, 2020) [non precedential] (Opinion by Judge Cindy B. Greenbaum) [Section 2(d) refusal of the mark CAMBRIDGE FITNESS for "Health club services, namely, providing instruction and equipment in the field of physical exercise" [FITNESS disclaimed] in view of the registered mark CAMBRIDGE for "“counseling services, namely, counseling others in the field of weight reduction and control and nutrition” and the identical mark for “Sporting and cultural activities, namely, organizing competitive sporting events and community cultural events; providing sports coaching; sports instruction services." [owned by two different registrants]. Applicant submitted evidence of 15 websites involving health-related businesses with CAMBRIDGE-formative names, in arguing that CAMBRIDGE is a weak formative.].

 

In re Champlain Cable Corporation, Serial No. 87625822 (October 1, 2020) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal of EXRAD ERGOFLEX for "battery cable, insulated copper door wires covered in flexible jacket material," in view of the registered mark ERGOFLEX & Design, for "cables, electric; electric wires; electric wires and cables; electrical terminal boxes; electrical terminal blocks; connections for electric lines; couplings, electric; wire connectors; electric junction boxes; electrical plugs and sockets; plug connectors; electrical connectors; electric connectors." Applicant maintained that its goods are not encompassed by the goods in the registration, that "ergoflex" is highly suggestive of the flexibility of the goods, and that its ownership of a registration for EXRAD shows that that term is a strong umbrella brand that distinguishes the marks at issue.].

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Text Copyright John L. Welch 2020.