TTABlog Test: Three Recent Section 2(d) Appeals For Your Consideration
The rate of affirmance for Section 2(d) refusals is running at about 93% so far this year, a tad higher than usual. Here are three recent TTAB decisions. How do you think they came out? [Answers in first comment.]
In re Alex Avila, Serial No. 97253987 (June 11, 2024) [not precedential] (Opinion by Judge Michael B. Adlin) [Section 2(d) refusal of the mark LOVE UNIVERSITY for “educational services, namely, conducting seminars, lectures, teleseminars, teleclasses, and workshops in personal awareness; entertainment services, namely, providing video podcasts in the field of psychology/spirituality/self help" [UNIVERSITY disclaimed], in view of the registered mark LUV YOUNIVERSITY for "education services, namely, providing mentoring, tutoring, classes, seminars and workshops in the field of self improvement, relationships, health and wellness, business; entertainment services, namely, providing podcasts in the field of self improvement, relationships, health and wellness, business; entertainment services, namely, providing video podcasts in the field of self improvement, relationships, health and wellness, business; publishing of books, e books, audio books, music and illustrations.]
In re Freeway Music, LLC, Serial No. 97421483 (June 12, 2024) [not precedential] (Opinion by Judge Christen M. English) [Section 2(d) refusal to register FREEWAY MUSIC for “Instruction in the nature of music lessons" [MUSIC disclaimed] in view of the registered mark FREEWAY for "audio and video recordings featuring musical entertainment."]
In re Red Toro Clothing Inc., Serial No. 97192675 (June 13, 2024) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of RED TORO for "hats; headwear; pants; shirts; shorts; sweatshirts; bottoms as clothing; jackets; tank tops; tops as clothing; hooded sweatshirts" in view of the registered marks RED BULL and TORO ROSSO for overlapping clothing items.]
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TTABlog comment: Predictions? See any WYHA?s
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 6/18/2024
2 comments
2 Comments:
All were affirmed.
The Freeway Music Case highlights one of the many examples of broad IDs being very problematic in the registration process. I never would have considered live musical performances related to music lessons. The musical performances used to find relatedness were applicant's own musical performances by its students and some third party registrations having the very broad description of services, "educational services", in the ID. I don't understand the rationale for construing the latter to include music lessons. In other contexts that makes some sense but it just seems too far afield for purposes of finding services to be related. At least allow for extrinsic evidence relating to the true nature of the broadly described services in the 3rd party registration. In my opinion, it took a lot of maneuvering to connect music lessons to live musical performances. It is quite clear that "live musical performances" refers to performances by a performer/band with at least SOME degree of talent, but the TTAB is more than happy to proclaim that it also includes a church choir, your 4 year old daughter's school recital and the person on the street corner with a guitar and a hat on the ground. Not that any of those things are ever branded but that's besides the point. That ID should have to include the subject of the performances..there are way too many IDs on the AIGS that are just way too broad. Man, this was some strong coffee..
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