TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
So far this year, the Board has affirmed 130 of the 139 Section 2(d) refusals on appeal. How do you think these three recent appeals came out? [Results in first comment].
In re Hyundai Motor Company, Serial Nos. 88599435 and 88599451 (August 26, 2022) [not precedential] (Opinion by Judge Angela Lykos) [Section 2(d) refusal of the mark HYUNDAI CARPAY for, inter alia, software and SAAS for "for in-vehicle simple payments" [CARPAY disclaimed], in view of the registered mark CARPAY "software as a service (SAAS) services featuring software for facilitating auto loan payments"].
In re S3 Concrete Technologies, Inc., Serial No. 90156396 (September 1, 2022) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) refusal of MEGACLEAN for "cleaner for use on concrete and specialty concrete" in view of the registered mark REJUVENATE MEGACLEAN for "laundry pre-treater and stain/spot remover for fabrics, clothing, and carpet."]
In re Cumberland Farms Inc., Serial No. 88897129 (September 1, 2022) [not precedential] (Opinion by Judge Martha B. Allard) [Section 2(d) refusal of word-and-design mark shown below left [FRESH and TO GO disclaimed] for, inter alia, "ready-to-eat meals comprised primarily of meats" and "coffee," in view of the registered marks FARMHOUSE for "Processed meats, namely pork, beef, and poultry," and the word-plus-design mark shown below left, for "Ground coffee beans; roasted coffee beans."]
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TTABlog comment: How did you do? See any WYHAs?
posted by John L. Welch @ 9/06/2022
4 comments
4 Comments:
All three were affirmed.
about 96.7%, if my math is correct.
Bob Kelson
All three appear correct.
I have no issue with decisions 1 and 3 - additions of matter to one word trademarks and overlap of goods or services.
Decision 2 is a little more interesting. However, the prominence given to Megaclean in use as opposed to Rejuvenate is significant. This appears to override the disparate nature of the particular products.
The FARMHOUSE decision is full of pig #@@$ because there are so many marks with Farmhouse in classes 29 and 30. I can hear the attorney trying to explain that to the client. Sorry, but although there are 115 Farmhouse marks in classes 29 and 30, the examiner was hyper-technical and the TTAB agreed with this hyper technical decision, and thus did not allow your mark.
The Megaclean decision is filthy dirty too. First, let's just throw out the word "Rejuvenate" (for any made up reason). Whatever happened to the caselaw that the first word is most important. Second, don't we love the Internet evidence submitted by the examining attorney, and the horrible law "The evidence also demonstrates that the goods may be sold in the same trade channels, like the The Home Depot store, and will be encountered by consumers on the websites of the manufacturers." Oh right. I'll buy concrete cleaner for my clothes or carpet and vice versa. These stains remain on the TTAB! Glad these 2 decision are not precedent.
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