TTABlog Test: Which of These Three Section 2(d) Refusal Was/Were Reversed?
The TTAB recently decided the appeals from the three Section 2(d) likelihood of confusion refusals summarized below. At least one of the three refusals was reversed. How do you think they came out? [Answer will be found in the first comment.]
In re Mas Clarella SL, Application Serial No. 88079246 (May 6, 2021) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of NYMPHS OF CLARELLA in view of the registered mark THE NYMPH, both for wines. Applicant maintained that “nymph” is somewhat suggestive or even descriptive of wine because the term has a strong association with Dionysus, the Greek god of wine, and therefore the term "OF CLARELLA" distinguishes the marks.]
In re ProBleu, Inc., Serial No. 88310811 (May 4, 2021) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) Refusal of PROBLEU for computer information security and computer network support services, in view of the registered mark BLUEPRO & Design for overlapping computer security services. Applicant argued that the transposition of the wording is significant because neither mark gives "any indication as to the goods and/or services they are selling or providing, and the ordering and appearance of the terms thus makes all the difference."]
In re Royal Realty Corp., Serial No. 88380382 (April 22, 2021) [not precedential] (Opinion by Judge Karen Kuhlke). [Section 2(d) refusal of LIVE ON POINT for "Real estate services, namely, leasing and management of buildings," in view of the registered mark ON POINT CAROLINAS REALTY for identical or related real estate services [CAROLINAS REALTY disclaimed]. Applicant argued that the real estate market is replete with uses of "on point," and further that its mark exhorts consumers to LIVE ON POINT, whereas the cited mark informs customers that registrant's services are directed to a specific geographic location.]
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Text Copyright John L. Welch 2021.
posted by John L. Welch @ 5/10/2021
4 comments
4 Comments:
The first two decisions were affirmed; the third was reversed.
Psychological principles, as I recall, give weight to "primacy" as enhancing recollection of the "first word." That seems relevant given the tests for comparing marks, although I don't recall seeing a lot of trademark cases discussing it in a mark similarity comparison. It explains why LIVE ON POINT is more different than the others.
How could anyone confuse bluepro with problue? Doesn't sound similar. Doesn't look similar. Doesn't have a similar meaning. Problue doesn't conjure up the color blue or the word professional. It sounds more like french for problem.
Compare that to On Point Carolina and Live on point. Much more like to confuse as they are both on point.
Does anyone know, roughly, how frequently the TTAB reverses a 2(d) rejection where the marks switch the word order? I cannot recall such a decision in recent memory. There is no per se rule that word reversal establishes similarity, but effectively it seems to do just that.
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