Wednesday, March 08, 2023

Three Recent TTAB Inter Partes Decisions, Briefly Noted.

Here are three recent TTAB rulings in three inter partes proceedings: a Section 2(d) case, a Section 2(e)(1) mere descriptiveness case, and a Section 2(f) case. I present only the bottom line outcome in each, inviting you, dear reader, to explore the further if you are so inclined.

Wood-Mizer, LLC v. Norwood Industries Inc., Cancellation No. 92067329 (March 2, 2023) [not precedential] (Opinion by Judge Thomas W. Wellington) [Applying the CAFC's Converse factors, the Board granted a petition for cancellation of a registration (issued under Section 2(f)) for the color orange for "portable band sawmills; portable chainsaw sawmills," on the ground that the mark lacks acquired distinctiveness.]

Sazerac Brands, LLC v. Bullshine Distillery LLC, Opposition No. 91227653 (March 6, 2023) [not precedential] (Opinion by Judge Michael B. Adlin). [The TTAB dismissed this Section 2(d) opposition to registration of BULLSHINE FIREBULL, in standard characters, for "alcoholic beverages except beers," finding that "even though the goods are identical and subject to impulse purchase, and travel in overlapping channels of trade to the same consumers, and Opposer’s FIREBALL mark is commercially strong, confusion is unlikely. Because Opposer’s FIREBALL mark [for whiskey and liqueurs] is so conceptually weak, the marks FIREBALL and BULLSHINE FIREBULL and are too different in appearance and sound, and especially meaning and commercial impression, for confusion to occur."]

Atara Biotherapuetics, Inc. v. Allogene Therapeutics, Inc., Oppositions Nos. 91247175 and 91247177 (January 26, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman) [The Board sustained oppositions to registration of ALLOCAR T (standard characters) and AUTOCAR T (standard characters) both for “pharmaceutical preparations, namely, preparations for use in the treatment of cancer and tumors; pharmaceutical and biological preparations for immunotherapy, including T Cell therapy,” finding the marks to be merely descriptive of the goods under Section 2(e)(1).]

Read comments and post your comment here.

TTABlogger comment: Query: Why is "fireball" conceptually weak for whiskey and liqueurs?

Text Copyright John L. Welch 2023.


At 11:59 AM, Anonymous Anonymous said...

Sazerac is going to appeal that decision 100%. This is the old, "no factor is dispositive, but any factor can be dispositive when it's the factor that weighs in the direction we want to go," test.

At 12:19 PM, Blogger Bob Cumbow said...

Good question! The product is actually a cinnamon-spiced whiskey, but the registration doesn't limit the registrant to that.


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