Tuesday, January 16, 2024

In 2023, What Was The Rate of TTAB Affirmance of Section 2(d) Refusals to Register?

Yours truly, the TTABlogger, has once again taken on the unenviable task of estimating the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board in the past calendar year. I counted 219 decisions, of which 188 were affirmances and 31 were reversals. That's an affirmance rate of just under 85%.

Only one of the opinions was designated precedential: the split decision regarding the mark IMPACT for various healthcare-related services. [TTABlogged here]. The reversal was based on the inadequacy of the USPTO's proof that certain of the involved services were related.

Here is a list of the 31 reversals [pdf]. Of the 31 reversals, 15 were primarily based on the differences in the marks, and 16 on the lack of relatedness between the involved goods and/or services. 

Set out immediately below is a bar chart showing the sinusoidal history of Section 2(d) appeals. The question is, will the "curve" continue downward or head back up?

Click on image for larger picture

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Text Copyright John L. Welch 2024.


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