TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
So far this year, the Board has affirmed 135 of the 144 Section 2(d) refusals on appeal (just about 94%). Here are three decisions that came down late last week. How do you think they came out? [Results in first comment].
In re Zena E. M. Conway, Serial Nos. 88801050 (September 15, 2022) [not precedential] (Opinion by Judge Angela Lykos) [Section 2(d) refusal of the mark Y/NG GR8TNESS (“GREATNESS” disclaimed) in view of the registered marks YNG and YNG+, all for educational services in the fields of business and personal development.]
In re vivawave Co., Ltd., Serial No. 88848727 (September 15, 2022) [not precedential] (Opinion by Judge Michael B. Adlin). [Section 2(d) refusal of MOOD NARRATIVE for various cosmetics, in view of the registered mark NARRATIVE COSMETICS ("COSMETICS" disclaimed) for "theatrical make up.”]
In re GFactor Enterprises, LLC, Serial No. 90286664 (September 15, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman) [Section 2(d) refusal of the mark shown below left, for "Hats; Shirts; Hoodies; Knit face masks being headwear," in view of the registered mark shown below right, for "Clothing for men, women and children, namely, shirts, golf shirts, T-shirts, sweatshirts, tank tops, sweaters, jeans, vests, jackets, coats, parkas, underwear, scarves."]
Read comments and post your comment here.
TTABlog comment: How did you do? See any WYHAs?
posted by John L. Welch @ 9/20/2022
7 comments
7 Comments:
All three were affirmed.
In the cosmetics/make up case, why wouldn't the applicant have excluded "theatrical make up"? To say that cosmetics encompasses such a narrow niche product (just look at John's photo!) takes that rule of construction WAAAAY too far in my opinion , but nevertheless, if applicant had done what I suggested above, I don't see how the examining attorney would have been able to prove that that "regular" cosmetics are related to theatrical cosmetics. Even if there are a few companies that sell both, at least make the examining attorney do some work and hope the evidence is deemed insufficient (given the differences in the marks...even though the factors are supposed to be evaluated independently of one another which we all know is NEVER the case in the TTAB)
I mean the "GFactor" case ... come on. This is a WWAT ("What Was Applicant Thinking?")
How in the world did that third one get to the appeal stage?!
No surprises there...
The GFactor application was filed by a former trademark examining attorney, which makes me wish she was still at the PTO examining all of my applications. (She's also a patent attorney, which just proves what everyone says about patent attorneys and trademarks.)
As a patent attorney and trademark attorney, I resemble that remark.
Post a Comment
<< Home