TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?

The TTAB recently decided the appeals from the three Section 2(d) likelihood of confusion refusals summarized below. Keeping in mind that, by my estimate, 90 % of Section 2(d) appeals result in affirmance of the refusal, how do you think these came out? [Answer will be found in the first comment.]


In re Mad Brewing Company, Application Serial No. 88757335 (June 16, 2021) [not precedential] (Opinion by Judge Cynthia C. Lynch). [Section 2(d) refusal of QUIRK for "beer, ale and lagers" in view of the identical mark for "hotel, restaurant and bar services." Applicant argued that the USPTO failed to prove the "something more" required to establish relatedness than the mere fact that bars and restaurants serve beer.

Quirk Hotel, Richmond, VA.

In re Emma Sievers, Serial No. 88559109 (June 16, 2021) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) Refusal of B.A. WOMEN for "Clothing, namely, t-shirts, long sleeved shirts, hoodies, short sets, sport tops, leggings, tank tops, athletic tops and bottoms for women" [WOMEN disclaimed] in view of the registered mark B.A. MAN for "Hats; Jogging suits; Pants; Shorts; Yoga pants" [MAN disclaimed]. Applicant contended that, based on the suspension of the limited liability company that owns the cited mark and her online search of Registrant’s use, the cited mark appeared to be abandoned.]

In re Salt Works Brewing Company, LLC, Serial No. 86970058 (June 11, 2021) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of SALT WORKS BREWING COMPANY for beer, ale, porter, and the like [BREWING COMPANY disclaimed], in view of the registered mark SALTWORKS PROPERTY for "distilled spirits." Applicant maintained that because the USPTO has permitted numerous pairs of similar marks to register for different alcoholic beverages, there can be no likelihood of confusion between its mark and the cited mark. In support, it relied on copies of nineteen pairs of registered marks obtained from the USPTO database.]

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Text Copyright John L. Welch 2021.