TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
So far this year, the Board has affirmed 107 of the 112 Section 2(d) refusals on appeal. How do you think these three appeals came out? [Results in first comment].
In re Denise Wiggins, Serial No. 88925216 (July 21, 2022) [not precedential] (Opinion by Judge Peter W. Cataldo) [Section 2(d) refusal of the mark EINAFF COSMETICS in the word-and-design form shown below, for "Face powder; Glitter for cosmetic purposes; Lip gloss; Lip gloss and wands therefor sold as a unit; Lip glosses; Lipstick; Lipstick cases; Lipstick holders; Lipsticks; Body glitter; Face and body glitter; Loose face powder; Make-up powder; Pressed face powder" [COSMETICS disclaimed], in view of the registered mark EINAFF for "Aromatherapy fragrance candles; Backfire torches containing diesel oil or kerosene and a wick for use in starting backfires to control fires and for controlled burns; Candles; Candles being of wax or liquid, for the illumination of carved pumpkins, mini-pumpkins, gourds, and other fruits and vegetables; Candles and wicks for candles for lighting; Candles for night lights; Christmas tree candles; Colored fire torches; Dust-binding compositions; Dust absorbing compositions; Dust binding compositions for sweeping; Petroleum based dust absorbing compositions for use in road building, sweeping, dustlaying; Scented candles; Scented wax for use in candle warmers; Wicks for candles; Wicks for candles for lighting."]
In re ConMed Corporation, Serial No. 88202718 (July 21, 2022) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of CONMED UNIFY for "surgical devices, namely, a modular multifunction energy platform consisting of surgical smoke evacuation devices for capturing and filtering smoke during electrosurgical procedures, electrosurgical generator apparatus, namely, electrosurgical generators with argon beam coagulation capabilities used only for laparoscopic surgeries and sold only by authorized and exclusive sales representatives who do not also sell suture needles and sutures," in view of the registered mark UNIFY "surgical needles and sutures.”]
In re CN Smokeless Company, LLC, Serial No. 88814027 (July 21, 2022) [not precedential] (Opinion by Judge Marc A. Bergsman) [Section 2(d) refusal of HORIZON for "moist smokeless tobacco; smokeless tobacco," in view of the registered mark HORIZONTECH "Ashtrays for smokers; Cartomizers, namely, combination electronic cigarette refill cartridges sold empty and atomizers, sold as a component of electronic cigarettes; Cigarette cases; Cigarette paper; Electronic cigarettes; Firestones; Japanese shredded tobacco (kizami tobacco); Lighters for smokers; Match holders; Pocket machines for rolling cigarettes."]
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TTABlog comment: How did you do? See any WYHAs?
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 7/26/2022
4 comments
4 Comments:
All three were affirmed.
I wouldn't have appealed HORIZON, I think that one is correct. But I'm not so sure about the others, especially EINAFF. I appreciate that it's an unusual mark (though perhaps not SO unusual, presuming it's a name). But, speaking as someone who has purchased cosmetics for my entire life, the registered goods are not closely related enough that I would assume a connection if I saw the same brand for cosmetics. They sound like AIRWICK products, or YANKEE CANDLE COMPANY or something like that. It's just not conceivable that a candle company branches out into cosmetics, or even licenses their name for cosmetics. No doubt the court considered the fact that cosmetics brands who do fragrances might offer a fragranced candle, but that is a fact less probative than it appears b/c that is not the norm and is a different situation from that presented here. This decision shows the kind of overbroad and mechanical interpretation of registrations we are seeing more and more, and it goes against the spirit of the law. Boo!
The EINAFF decision is egregious. Actual consumers of cosmetics would never be confused by a candle of the same name. But before I even read the opinion, I *knew* that they were going to cite BATH & BODY WORKS as a brand name for both - though in the real world, that connection is tenuous at best. These decisions from the Board are out of hand.
CONMED UNIFY hurts - fanciful term at the front of the trademark, but looks like there was an evidentiary failing in attempting to show that UNIFY was common and weak. TTAB gave the CONMED house mark argument short treatment.
Agree with the TTAB on the other two.
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