Friday, March 18, 2022

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

A TTAB judge once said to me that you can predict the outcome of a Section 2(d) appeal 95% of the time by looking at the marks and the goods/services. This year, the Board has affirmed 44 of the first 45 Section 2(d) refusals it has considered. Here are the latest three. How do you think they came out? [Answer in first comment.]

In re Liquid Web LLC, Serial No. 88910823 (March 14, 2022) [not precedential] (Opinion by Judge Cynthia C. Lynch). [Section 2(d) refusal of SAFE HARBOR for, inter alia, "computer security consultancy services, namely, providing updated security patches in the nature of updating computer software, nightly online scanning and detecting of malware on computers and electronic devices and presenting reports concerning the performance of online systems; maintenance of computer software relating to computer security and prevention of computer risks, namely, detecting and blocking malicious cybersecurity attacks via web application firewall." in view of the registered mark SAFEHARBOR for "Engineering, computer technology, and cybersecurity consulting services for maritime organizations, namely, services for updating computer hardware and software relating to computer security and services for prevention of computer security risks; Providing temporary use of non-downloadable cloud-based software to improve computer security and prevent computer security risks for maritime organizations."] 

In re Affiliated Foods, Inc., Serial No. 88790990 (March 14, 2022) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal of SAV-U-MOR for "retail grocery stores" in view of the registered marks SAV-MOR... YOUR PHARMACY EXPERTS for “Pharmacy and retail drug store services and general merchandise store services; retail pharmacy services, namely, providing an automated interactive telephone and SAV-MOR DRUG STORES & Design for "Retail pharmacy services, retail drug store services and retail general consumer merchandise store services" [DRUG STORES disclaimed]]

In re Alembic Pharmaceuticals, Inc., Serial No. 88660548 (March 11, 2022) [not precedential] (Opinion by Judge Thomas Shaw). [Section 2(d) refusal of ALEMBIC for a variety of "Generic prescription drugs, approved by the U.S. Food and Drug Administration, namely, prescription drugs in the nature of pills, tablets, capsules, caplets, liquid drops, sachets and pharmaceutical preparations . . . filled by a retail pharmacy licensed to sell prescription drugs," in view of the registered mark ALEMBIC HERBALS & Design for a variety of “medicines for human purposes for strengthening the immune system and restoring normal bodily functions, the treatment, mitigation and prevention of diseases and disorders" [HERBALS and the pictorial representation of the mortar, pestle, and flowering herbal plant disclaimed]].

Read comments and post your comment here.

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

Text Copyright John L. Welch 2022.


At 7:06 AM, Blogger John L. Welch said...

All three refusals were affirmed.

At 7:38 AM, Blogger Gene Bolmarcich, Esq. said...


At 7:39 AM, Blogger Gene Bolmarcich, Esq. said...

I think that 95% should now be about 99%

At 3:25 PM, Blogger Valerie N said...

Got it and no surprises.


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