A TTAB judge once said to me that one can predict the outcome of a Section 2(d) appeal about 95% of the time just by looking at the marks and the goods/services. In the past decade, about 90% of Section 2(d) refusals have been affirmed on appeal. So, if you say "affirmed" you will be right 90% of the time! Anyway, here are three recent Board decisions, at least one of which resulted in a reversal. How do you think they came out?
In re Western Workhorse Management, LLC, Serial No. 88008152 (October 16, 2024) [not precedential] (Opinion by Judge Mark Lebow). [Section 2(d) refusal of the mark NXT for "management of multi-tenant living facilities owned by others, namely, building management" in view of the registered mark NXT CAPITAL, in both standard-character and the stylized form shown below, for "commercial lending services and financial investment services; commercial real estate lending and investment services; and institutional investment management and advisory services related to the foregoing" [CAPITAL disclaimed]].
In re Hussmann Corporation, Serial No. 97530166 (October 16, 2024) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of the mark STORECONNECT for "Platform as a service (PAAS) featuring computer software platforms for providing analytics for commercial refrigeration equipment in the food and beverage retailing industry" in view of the identical mark registered for "Downloadable and recorded data processing software for use in . . . inventory management."]
In re Robert Greaves, Serial No. 90248955 (October 2, 2024) [not precedential] (Opinion by Judge Christen M. English). [Section 2(d) refusal of the mark TIMBERLINE PATIO COVERS for “consultancy, planning, laying out, construction and installation, and construction management, supervision, and project management, all of the foregoing in the field of construction, maintenance, and repair of free-standing gazebos or covers for decks, porches, and patios for outdoor spaces of residential and commercial buildings” [PATIO COVERS disclaimed], in view of the registered mark TIMBERLYNE GROUP for "building construction; general construction contracting management; building construction consulting; construction of complete post-frame, post and beam, mortise and tenon, and mass timber buildings and structures,” and for "architectural design services; construction drafting; interior design assist, technical consultation in the field of architecture, engineering surveying, and engineering" [GROUP disclaimed].]
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TTABlogger comment: How did you do?
Text Copyright John L. Welch 2024.
The STORECONNECT refusal was reversed, the other two affirmed.
ReplyDeleteAs I mentioned recently, I think the deck is stacked against the applicant in Section 2d proceedings, whether ex parte or inter partes
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