TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
The Board has affirmed 67 of the first 70 Section 2(d) refusals it has considered on appeal this year. Here are the latest three appeals for your consideration. [Results in first comment].
In re Avenida Partners Development Group, LLC, Serial Nos. 88833914 and 88833933 (April 1, 2022) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusals of 5 TO THRIVE and FIVE TO THRIVE for a "continuing care enrichment wellness program that offers a host of invigorating and stimulating activities that support five key areas of healthy aging," in view of the registered mark FIVE TO THRIVE for "for “providing information in the field of healthcare and wellness via the Internet."]
In re Avenida Partners Development Group, LLC, Serial Nos 88834060 and 88833991 (April 11, 2022) [not precedential] (Opinion by Judge Melanye K. Johnson) [Section 2(d) refusals of AVENIDA PARTNERS, in standard character and design form, for "Real estate development services including the field of active, independent senior living communities," in view of the registered mark AVENUE PARTNERS for "Real estate development; Real estate development and construction of commercial, residential and hotel property; Real estate site selection."]
In re Malaga Imports, LLC, Serial No. 90041414 (April 12, 2022) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of PROBASE NUTRITION for "Collagen peptides for use as a nutritional supplement" [NUTRITION disclaimed], in view of the registered mark BASE NUTRITION for numerous goods in International Class 5, including “Dietary and nutritional supplements" [NUTRITION disclaimed]].
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TTABlog comment: How did you do?
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 4/14/2022
4 comments
4 Comments:
All were affirmed
The FIVE TO THRIVE appeal is a WYHA.
But turning to the AVENIDA PARTNERS decision, why would consumers, even Spanish-speaking consumers, stop and translate the word "avenida" in AVENIDA PARTNERS into English? The word "partners" in the mark is already in English, but since "avenida" is not, that should signify to consumers it is not to be translated.
Good question. See the TAVERNA COSTERA case here: https://thettablog.blogspot.com/2021/11/precedential-no-30-ttab-reverses.html
For Number three, if the two marks were BASE and BASEPRO, then that's a gimme; but PROBASE and BASE would never be confused in the real world. PROBASE sounds like a amino acid or some other nutritional term.
But, that's just me as a former Examining Attorney. If "Likelihood" means over 50% of consumers would be confused, then I'd say "no way jose." How many "NATURAL" with other terms are on the USPTO register co-existing or in the marketplace for Class 5 goods?
Extremely WEAK MARK (PROXXXXX) = WEAK Protection = no 2(d).
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