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. One of the refusals was reversed. Which one? [Answer in first comment].
In re Asept Air, Inc. , Serial No. 88265476 (January 6, 2021) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of
ASEPT-AIR for “Air purification machinery units for residential, commercial and industrial use and accessories, namely, filters for air purification" in view of the registered mark shown below for "UV light disinfection systems comprised primarily of ultraviolet lamps for use in medical and healthcare facilities; Air purifiers for commercial and domestic use."]
In re Shenzhen Airsmart Technology Co., Ltd., Serial No. 87427315 (January 14, 2021) [not precedential] (Opinion by Judge Albert C. Zervas). [Section 2(d) refusal of
MUZEN in stylized form (below left) for "Acoustic membranes; Blank CD-ROMs for sound or video recording; Cabinets for loudspeakers; Compact disc players; Headphones; Horns for loudspeakers; Juke boxes for computers; Personal stereos; Portable media players; Sound transmitting apparatus," in view of the registered mark
MUSES & Design (below right) for "Integrated circuits; operational amplifiers; 3-D surround-sound processors; electronic circuits; audio amplifiers; audio circuit boards; computer accelerator boards; and computer expansion boards." [N.B. "muzen" is Dutch for "muse"]].
In re Anastasia Confections, Inc., Serial No. 87588050 (January 14, 2021) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of the mark shown below for “coconut and chocolate confections; cookies; chocolates; chocolate snacks; baked goods, namely, cookies, chocolate-based bakery goods, and coconut-based bakery goods" in view of the registered mark
THE TASTE OF PARADISE for "processed macadamia nuts."]
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TTABlog comment: How did you do? See any WYHAs here?
Text Copyright John L. Welch 2021.
The first refusal was reversed.
ReplyDeleteWow, I sure missed that one! I had trouble deciding between the second and third ones, but thought the first one was affirmed for sure.
ReplyDeleteThese three decisions collectively do not give me any added confidence in trying to counsel clients on potential 2(d) issues.
I was correct on one and wrong on two. I agree with Anonymous on the comment on counseling clients.
ReplyDeleteI agree with you there. I thought the second or third one would have been reversed but the first one affirmed for sure.
ReplyDeleteWhat? Asept-Air can exist right next to Asept.1X? Basically the same mark Asept.
ReplyDeleteMakes zero sense.
If anything Muzen sounds and looks different than Muses.
Same here! I thought the first one was a WYHA.
ReplyDeleteWow! I missed that one as well. I thought it was the third one. I thought the element ANASTASIA might have been strong enough for a finding of no likelihood of confusion.
ReplyDeleteDarn--I was so sure it was the second one, and if I were the TTAB it would have been.
ReplyDeleteHuh. I had them all wrong. The TTAB guessing game continues.
ReplyDeleteInteresting. Number one wasn't even close, in my opinion. I do not understand why it was refused in the first place. I'll have to read the Office Action, I guess.
ReplyDeleteMUZEN and MUSES for music-related goods don't seem confusingly similar to me
ReplyDeleteI also had them all wrong. Glad to be in good company here, but this does not help me in counselling clients.
ReplyDeleteI thought the second refusal would have been reversed.
ReplyDeleteI guessed right on the first one. I was torn between the first one and the second one on which was reversed until I thought about the fact that this was music related and Muzen sounds like "musin'" short for "musing", which is similar to "muses." Admittedly that took some work, but I thought the third one was closest to a WYHA.
ReplyDelete