Friday, May 24, 2024

TTABlog Test: Which of These Three Recent 2(d) Refusals Was/Were Reversed?

So far this year, the rate of affirmance for Section 2(d) refusals is just over 90%. The annual refusal rate typically hovers around 90%. Here are three recent TTAB decisions, at least one of which was reversed. How do you think they came out? Answers in first comment.

In re Rise Above, Serial No. 88735273 (May 13, 2024) [not precedential] (Opinion by Judge Peter W. Cataldo) [Section 2(d) refusal of the mark shown below, for various charitable services for promoting exercise, healthy eating, fitness and exercise training, and character enrichment to native youth, in view of the registered mark RISE ABOVE, for services including charitable services in the field of promoting exercise, healthy eating, fitness and exercise training, and character enrichment.]

In re Ayres Group, Serial No. 97246717 (May 13, 2024) [not precedential] (Opinion by Judge Christen M. English) [Section 2(d) refusal to register the mark shown below left, for "wine; red wine; rose wine; white wine all of the foregoing being marketed and sold at an associated hotel and related website," in view of the registered marks shown below right, for "wines."]

In re Pegasus Protein LLC, Serial No. 88616931 (May 21, 2024) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of PEGASUS PROTEIN for "Powdered nutritional supplement drink mix containing protein powder" [PROTEIN disclaimed] in view of the registered mark PEGASUS for "Topical preparations, namely, sprays, gels and creams for enhancing sexual arousal; sexual enhancement supplements."]

Read comments and post your comment here.

TTABlog comment: See any WYHA?s

Text Copyright John L. Welch 2024.


At 7:58 AM, Blogger John L. Welch said...

The first two were affirmed, the third reversed.

At 10:51 AM, Anonymous Anonymous said...

I can't remember the last time I was this certain of which had been reversed. Thanks for the occasional softball, John

At 1:01 PM, Blogger Stephen P McNamara said...

That's what I would expect and does not leave me feeling outraged.

At 6:38 PM, Anonymous Alex B. said...

I agree with the above commenters. I have been noticing examiners starting to regularly contend that class 5 nutritional supplements are related to class 3 creams and skin care or hair care preparations or the like so I'm glad to see the TTAB refute that contention. I need to read that decision and it might be a keeper, though not precedential.


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