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Friday, August 20, 2021

TTABlog Test: Three Recent Section 2(d) Appeals - How Did They Come Out?

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. How do you think these came out? [Answers in first comment].



In re Draion M. Burch DO Inc., Serial No. 888603134 (August 17, 2021) [not precedential] (Opinion by Judge Frances S. Wolfston). [Section 2(d) refusal of MOMENTUM for "Vaginal moisturizers; Personal lubricants" in view of the registered mark MOMENTUM NUTRITION for nutritional supplements  [NUTRITION disclaimed].]

In re Altoz, Inc., Serial No. 88625236 (August 17, 2021) [not precedential] (Opinion by Judge David Mermelstein). [Section 2(d) refusal of TRX for "[z]ero turn riding lawn mowers," in view of the identical mark registered for "[a]ll terrain vehicles and structural parts therefor."]



In re Edward Kwak, Serial No. 88687305 (August 17, 2021) [not precedential] (Opinion by Judge Peter W. Cataldo) [Section 2(d) refusal of KINDSKIN for "Cosmetic skin care services; Health spa services, namely, cosmetic body care services; Medical spa services, namely, minimally and non-invasive cosmetic and body fitness therapies," in view of the registered mark KIND HEALTH GROUP for "Medical spa services, namely, minimally and non-invasive cosmetic and body fitness therapies."]
 


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TTABlog comment: How did you do? Any WYHAs here?

Text Copyright John L. Welch 2019.
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10 comments:

  1. John L. Welch6:47 AM

    all three were affirmed

    ReplyDelete
  2. Sylvia Mulholland7:17 AM

    I would have reversed the third one.

    ReplyDelete
  3. IPRwatch9:03 AM

    I would have affirmed all three based on examining marks and goods at first glance.

    ReplyDelete
  4. Unknown9:16 AM

    I would have reversed the first one. No way those goods are related.

    ReplyDelete
  5. Anonymous9:53 AM

    Who told you that Dave Allen?
    I think it’s valid on ex parte applications since rarely is there a need for the DuPont factors.
    When you get to inter partes oppositions, DuPont controls.

    ReplyDelete
  6. Anonymous10:09 AM

    I was initially skeptical of the relatedness of the goods for both MOMENTUM and TRX. After taking a quick look through each opinion, I became convinced that the relevant goods are related for MOMENTUM.

    But the TRX opinion is lacking. The examining attorney's third party registration evidence is paltry. But even more so, the Internet evidence of third party use pertains much more to distributorship or sales/rental services of ATV's and zero turn mowers. I believe this is flawed. Regardless, the relatedness of the goods is just one factor, and it may not have swayed the ultimate decision if it was determined that the goods are dissimilar.

    ReplyDelete
  7. Elana Greenway Faniel10:39 AM

    I would have reversed the third one as well.

    ReplyDelete
  8. Elizabeth Office12:37 PM

    I would have affirmed first two, reversed the third.

    ReplyDelete
  9. Anonymous8:31 AM

    For the first one - what planet are the TTAB living on, because it ain't this one?

    I wonder what the weather is like on Trademark World?

    And I am a Robot. Stop discriminating against Robots; otherwise, we Robots will violate Asimov's Three Law (I believe humans added a 4th after seeing the Terminator movies).

    ReplyDelete
  10. Anonymous8:33 AM

    Just want to add a huge "Thank You" to John for his TTABLOG. It is indispensable for keeping up to date on recent TTAB and other trademark matters. Much much appreciated.

    ReplyDelete