TTABlog Test: Four Recent Section 2(d) Appeals - How Did They Come Out?
About a dozen years ago, a TTAB judge 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 four recent decisions in appeals from Section 2(d) refusals. How do you think these came out? [Answers in first comment].
In re Michel Mercier, Serial No. 79246019 (November 24, 2020) [not precedential] (Opinion by Judge David Mermelstein). [Section 2(d) refusal of Romy (standard characters) for "Hair brushes, hair combs, hair styling comb and brushes, rotary hair brushes, electrically heated hair brushes" in view of the registered mark ROMY for soaps, perfumery, cosmetics, hair lotions, hair dyes, shampoos, hair conditioners, and hair sprays. Applicant argued that "Registrant’s products are only available from their foreign website and are made to be home mixed by the purchaser with a special device."]
In re Hong Kong NETEASE Interactive Entertainment Limited, Serial No. 88256950 (November 24, 2020) [not precedential] (Opinion by Judge Jonathan Hudis). [Section 2(d) refusal of RANGERS OF OBLIVION for downloadable computer game software and for providing online computer games, in view of the registered mark OBLIVION for "computer game programs; providing downloadable computer game programs." Applicant argued that "RANGERS" is the dominant portion of its mark, since it is the first word in the mark.]
In re Win Win Asian Restaurant, LLC, Serial No. 88412518 (November 24, 2020) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of WIN WIN ASIAN KITCHEN (ASIAN KITCHEN disclaimed) for "restaurant services" in view of the registered mark WIN WIN for "take out restaurant services; restaurant services." Applicant contended that the owner of the cited registration "provides as a core business a gas station and convenience store whose 'primary business model is to attract customers who primarily want gasoline,' whereas Applicant’s services 'are only restaurant services.'"]
In re Sergey Iotko, Serial No. 87498790 (November 25, 2020) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of the mark HOMY & Design for, inter alia, power cables and mobile telephone accessories, namely, belt clips, in view of the registered mark HOMYA for, inter alia, electric cables and cell phone cases. Applicant argued that the stylization of his mark is sufficient to distinguish the marks because his mark "creates a distinct phonetic and connotative impression from the cited mark."]
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TTABlog comment: How did you do? Any WYHAs here?
Text Copyright John L. Welch 2020.
posted by John L. Welch @ 11/27/2020
3 comments
3 Comments:
All four were affirmed
I see four WYHAs.
WIN WIN was definitely a WYHA! (Must fight urge to make a "LOSE LOSE" joke ...) I really wish applicants and their attorneys would realize that, as the Board has continuously said (and repeats in this case), the comparison of the services is based on the identifications, not extrinsic evidence of actual use. Arguing how the services are actually provided is such a loser of an argument in an ex parte proceeding that it's usually a signal to anyone reading the case that the applicant has no real arguments to make against the refusal (I'd argue that it's almost on the same level as making an unsubstantiated "consumer sophistication" argument in terms of uselessness).
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