Wednesday, February 23, 2022

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

The Board's shutout streak in Section 2(d) appeals is up to 33 affirmances and no reversals. Here are the latest three decisions. Has the streak been broken? How do you think they turned out? [Answer in first comment].

In re People’s Ventures, LLC, Serial No. 88003115 (February 17, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal of PEOPLE'S & Design for "Clothing, namely, shirts, t-shirts, tops, tank tops, sweatshirts, hats, and jackets," in view of the registered mark PEOPLES GARMENT CO. for "t-shirts; sweatshirts" [GARMENT CO. disclaimed].]

In re Sunrise Apparel Group, LLC, Serial No. 88571635 (February 18, 2022) [not precedential] (Opinion by Judge David K. Heasley). [Section 2(d) refusal of AMERICAN STAR for "clothing, namely, jeans, bottoms, pants, shorts, skirts, shirts, vests, tops, blouses, dresses, coats, sweaters, t-shirts, jackets; headwear; and footwear" [AMERICAN disclaimed], in view of the identical mark for "jewelry" [AMERICAN disclaimed].]

In re Frontline Millionaires LLC, Serial No. 88679886 (February 18, 2022) [not precedential] (Opinion by Judge Jonathan Hudis). [Section 2(d) refusal of RISK & REWARD in view of the registered marks RIZKY REWARDZ and RISK.REWARD (different owners), all for various clothing items, including t-shirts.]

Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHAs?

Text Copyright John L. Welch 2022.


At 7:26 AM, Blogger John L. Welch said...

All three were affirmed

At 11:55 AM, Anonymous Anonymous said...


I believe a psychological test of certain Board members is appropriate at this time.

At 12:00 PM, Blogger IT JUST DOESN'T MATTER said...

John - I just want to thank you for TTABLOG. It is and has been the #1 resource of TTAB and Fed TM cases and commentary which keeps me informed and up to date on the insanity that is our job or punishment for actions in past lives - trademark lawyers.

At 12:04 PM, Blogger Gene Bolmarcich, Esq. said...

This comment has been removed by the author.

At 1:56 PM, Blogger Valerie N said...

No surprises. And maybe add to the lexicon WYHEA? (would you have even applied?)
Thank you!

At 9:33 PM, Blogger Susan DT said...

It's important to address rejection risks up front with the client - John's blogs can be used to demonstrate the difficulty in overcoming a 2d rejection. Filing appeals is costly for the client with most resulting in affirmance of the examiner. And keeps them in a bind as to whether they should rebrand or keep truckin with a problematic mark. We are doing our clients a favor by giving them the hard truth so that have a good chance of getting a registered mark. Picking a brand that can be registered and not infringe on other marks/domain name issues is no small task.

At 1:04 PM, Anonymous Anonymous said...

The affirmance rate is really being driven by the strength of the rejections and a continued effort by applicants to fight them. If you actually have a legitimate argument to refute a 2d rejection, then you may want to evaluate that case in a bubble and throw aside these statistics.

At 4:03 PM, Anonymous Anonymous said...

If goods are identical, overlap or related + the first term in the opposing marks are identical or substantially similar => almost zero chance of reversal.


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