TTABlog Test: How Did These Three Section 2(d) Oppositions Come Out?
A TTAB judge once told me that you can predict the outcome of a Section 2(d) case 95% of the time by just looking at the goods/services and the marks. I kid you not! Let's see how you do with the three cases summarized below. Answer(s) in the first comment.
MG Financial, LLC v. Kiran Sureshbhai Shah, Oppositions Nos. 91250240 and 91250316 (November 15, 2021) [not precedential] (Opinion by Judge Christen M. English). [Section 2(d) oppositions to registration of OLD HARBOR (stylized) for "tea" in view of the standard form mark OLD HARBOR registered for "coffee."]
Kona USA, Inc. v. Global Esprit Inc., Opposition No. 91244876 (November 22, 2021) [not precedential] (Opinion by Judge Christopher Larkin).[Section 2(d) opposition to KONA81 (Stylized) for various clothing items, including sport shirts, sports jerseys, and sports pants, in view of the registered mark KONA for bicycles and the common law mark KONA for jerseys for cycling, pants for cycling, and shirts for cycling.]
Rolex Watch U.S.A., Inc.
v. PWT A/S, Opposition No. 91231624 (November 29, 2021) [not precedential] (Opinion by Judge Marc A. Bergsman). [Section 2(d) opposition to registration of the design mark shown below left, for various goods in classes 3 (perfume and cosmetics), 9 (sunglasses), 18 (wallets and bags), 25 (clothing), and 35 (wholesale and retail store services), in view of the design mark shown below right, for "time pieces of all kinds and parts thereof" and "retail store services featuring watches, timepieces, clocks and jewelry" (class 35).]
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Text Copyright John L. Welch 2021.
posted by John L. Welch @ 12/03/2021
5 comments
5 Comments:
All three oppositions were sustained.
I always understood that for ex parte cases but for inter partes cases that seems to be a stretch since more factors tend to come into play. Even in ex parte cases, it's hard to judge the strength of the mark factor on the face of it and that's what often throws me when it seems so obvious otherwise
The first one feels like a WWTA (why was this approved?).
Gene: I agree with you. The 95% statement makes more sense for ex parte cases.
For ex parte cases reviewing Section 2(d) refusals, I recall statistics indicating that a guess of "affirmed" would be correct roughly 95% of the time regardless of ANY of the facts of the case.
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