TTABlog Test: Which One of These Three Section 2(d) Refusals Was Reversed?
So far this year, the TTAB has affirmed 177 of the 190 Section 2(d) refusals on appeal (about 93%). Here are three decisions that came down recently. How do you think they came out? [Results in first comment].
In re Matosantos Commercial Corporation, Serial No. 88718607 (December 6, 2022) [not precedential] (Opinion by Judge Robert H. Coggins) [Section 2(d) refusal of FRUIT & VEGGIE BLENDERS, in the stylized form shown below, for "Frozen fruits; Frozen vegetables," in view of the registered mark FRESH BLENDERS for “Fresh fruit and vegetables" [FRESH disclaimed]].
In re Maesa LLC, Serial No. 88901053 (December 8, 2022) [not precedential] (Opinion by Judge Cynthia C. Lynch) [Section 2(d) refusal of the mark the mark GOODBATHS in stylized form (first below) for "Body cream; Body lotion; Body scrub; Body wash; Fragrances; Non-medicated soaps for the body; Non-medicated soaps for the hands; Non-medicated skin care preparation, namely, body mist," finding confusion likely with the registered mark GOODBATH in stylized form (second below) for "Bath linen, except clothing; Textile material, namely, towels, table napkins; Bed linen; Towels of textile; shower curtains of textile or plastic."
In re Cxffeeblack LLC, Serial No. 90109203 (December 12, 2022) [not precedential] (Opinion by Judge Marc A. Bergsman) [Section 2(d) refusal of GUJI MANE for "Coffee; Coffee beans; Ground coffee beans; Roasted coffee beans; Unroasted coffee" in view of the registered mark GUJI for "coffee."]
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TTABlog comment: How did you do? See any WYHAs?.
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 12/14/2022
7 comments
7 Comments:
The third one was reversed. "Because Guji is a geographical region in Ethiopia known for coffee, it is geographically descriptive of coffee," and therefore, GUJI is a weak mark for coffee.
I search names for bedding/towels (Class 24) frequently, and I don't ever check Class 3 unless identical, as in the GOODBATH case. Now I have to take those similarities more seriously.
All three should have been reversed. The other two cases, particularly the good baths case, are trash descriptive marks that shouldn't be protected. GOODBATHS for BATH linens. Give me a break.
The goodbaths case really illustrates how things have changed so much against applicants in ex parte appeals (since that 1987 case that was discussed therein). The TTAB will find relatedness of goods on very scant evidence and dismiss "Thor Tech type" evidence that suggests the opposite. There is a very interesting discussion of how a sampling of third party registrations is virtually useless to an applicant but no explanation of why Mucky Duck still remains the law (although it seems to be heading towards a situation where 3rd party registration evidence is merely supplemental to use-based evidence, and not effective on its own, although use-based evidence, again, can be quite scant and yet good enough to allow the Board to uphold the examining attorney's finding of relatedness
In the BLENDERS case, despite what the Board proclaimed, as experts on consumer behavior, I, as a consumer, would absolutely NOT BE "likely to perceive Applicant’s mark as a variant mark denoting a product line extension into frozen fruits and vegetables"
In the Goodbaths case, looks like the Board is trying to overrule the ThorTech case without actually overruling it, by mischaracterizing it. They say, "In Thor Tech., the Board did not find the applicant’s pairs of registrations persuasive ...."
In Thor Tech., the Board said this after noting the complimentary nature of the goods (trucks and trailers): "To the contrary, the third-party registrations of record suggest that consumers are aware that they are offered by different companies under the same or similar marks. Accordingly, we find that the similarity of the goods factor weighs against likelihood of confusion." They went on to find no likelihood of confusion despite the marks being identical. So how did the Board in Thor Tech not find those pairs of registrations persuasive? It looks to me like that is the main thing they did find to be persuasive (there was also the high degree of customer care and some different trade channels).
Is the cited GUJI registration vulnerable to cancellation in view of the Board's finding that "Guji is a geographical region in Ethiopia known for coffee" and "geographically descriptive of coffee"?
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