The outcome of a Section 2(d) opposition is more difficult to predict than a Section 2(d) appeal. Lack of actual confusion may come into play, for example, and the parties may enter into stipulations or make admissions that significantly affect the result. By my estimate, Section 2(d) oppositions have been sustained about 80% of the time so far this year, which may indicate how the deck is stacked against the applicant in th likelihood-of-confusion analysis. Here are three recent Board decisions. How do you think they came out?
Flowers Bakeries Brands, LLC v. OWN Your Hunger Inc., Opposition No. 91278157 (October 3, 2024) [not precedential] (Opinion by Judge Melayne K. Johnson). [Opposition to registration of WONDERSPREAD for "nut butters" in view of the registered mark WONDER for bread and bakery goods.]
BrightView LLC v. BrightView Behavioral Health Center, Inc., Opposition No. 91281647 (October 8, 2024) [not precedential] (Opinion by Judge Thomas L. Casagrande). [Opposition to registration of BRIGHTVIEW BEHAVIORAL HEALTH for "Behavioral health services; Behavioral health services in the nature of child disability services" [BEHAVIORAL HEALTH disclaimed] in view of the common law mark BRIGHTVIEW for addiction treatment service.]
Ateara L. Garrison v. Neidy E. Hornsby, Opposition No. 91269392 (October 11, 2024) [not precedential] (Opinion by Judge Christopher C. Larkin). [Opposition to registration of GUARD YOUR GENIUS WITH NOIR IP in view of the registered mark GUARD YOUR GIFTS, both for legal services.]
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Text Copyright John L. Welch 2024.
All three oppositions were sustained
ReplyDeleteI'm not seeing "Guard Your Genius with Noir IP" causing confusion with "Guard Your Gifts". That basically means people don't read past "Guard Your". Not only that, it doesn't look from the ad that "Guard Your Gifts" is even being used as a stand-alone mark. It's "Guard Your Gifts with The Garrison Firm, LLC".
ReplyDeleteIn the "Guard Your ...." case, applicant shot herself if the foot with too many admissions.
ReplyDeleteJohn, I'd love to read any comments you care to post in which you detail the ways in which the deck may be stacked against applicants in 2(d) refusals and oppositions. I agree it appears to be stacked against applicants, such as the TTAB expressly stating that examining attorneys are held to a lower standard of proof. Do you see any stacking beyond that?
ReplyDeleteJohn, I think it is more accurate to say that the applicant shot herself in the foot by not responding to requests for admission.
ReplyDelete