TTABlog Test: Which of These Section 2(d) Refusals Was/Were Reversed?
The TTAB recently decided the appeals from the three Section 2(d) likelihood of confusion refusals. At least one of the refusals was reversed. Which one(s)? [Answer will be found in the first comment.]
In re Ubican Global Licensing, LLC, Application Serial No. 88731594 (February 24, 2021) [not precedential] (Opinion by Judge Marc A. Bergsman). [Section 2(d) refusal of HEALIX for "herbs for smoking, none of the hemp derived ingredients of which contain a delta-9 tetrahyrocannabinol (THC) concentration of more than 0.3 percent on a dry weight basis," in view of the registered mark HELIX & Design for "smoking pipes."]
In re The Jacob D. Fuchsberg Law Firm, LLP, Serial No. 87843998 (February 26, 2021) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) Refusal of JACOB FUCHSBERG LAW FIRM & Design in view of the registered marks TOURO LAW TOURO COLLEGE JACOB D. FUCHSBERG LAW CENTER & Design, all for legal services].
In re Conmed Corporation, Application Serial No. 88355889 (March 2, 2021) [not precedential] (Opinion by Judge Robert H. Coggins). [Section 2(d) refusal of MIMIX for "medical cutting devices, namely, arthroscopic shavers and burs for small joints" in view of the identical mark registered for "bone implants, namely, bone replacement material composed of a synthetic powder which is mixed with a solution to form a paste, used for the surgical correction of cranial defects."]
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TTABlog comment: How did you do? See any WYHAs here?
Text Copyright John L. Welch 2021.
posted by John L. Welch @ 3/04/2021
3 comments
3 Comments:
Only the second one was reversed (Fuchsberg)
I got this one right!
I see no contradiction. I've always understood "trade channel" to be a factor independent of customer class. Trade channels are broad concepts like direct retail in a brick-and-mortar store, wholesale, multi-channel such as networks of distributors and value-added resellers, or the use of direct sales reps who call on customers. Thus, if the applicant and registrant both sell in wholesale channels to distributors, they're in the same trade channel, even if the distributors are different and have different levels of sophistication. The trade channel factor can weigh in favor of the likelihood of confusion because using the same channel increases the likelihood that the same customers will receive promotions of the parties' respective goods and marks. Of course, it's possible that a significant difference in customer sophistication could outweigh the trade channel factor in the overall analysis.
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