TTABlog Test: Three Section 2(d) Appeals - Affirmed or Reversed?
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. Here are three recent Board decisions. How do you think they came out?
In re Alliant Insurance Services, Inc., Serial No. 973516444 (November 5, 2024) [not precedential] (Opinion by Judge Albert J. Zervas). [Section 2(d) refusal of the mark ALLIANT INSURANCE FOUNDATION for “charitable foundation services, namely, providing financial support to individuals, institutions and organizations for providing opportunities relating to classes instruction and careers in insurance” [INSURANCE FOUNDATION disclaimed] in view of the registered mark ALLIANT for "Health insurance underwriting; insurance underwriting in the field of health insurance for individuals and businesses; insurance administration; health, dental, and vision insurance administration and underwriting; insurance services, namely, underwriting, issuance, and administration of health, dental, and vision insurance plans.”]
In re Positivevolution Pty Ltd, Serial No. 79348303 (November 5, 2024) [not precedential] (Opinion by Judge Robert Lavache) [Section 2(d) refusal of the mark ENSOMBL for, inter alia, "Netcasting, namely, broadcasting programs via global computer network in the field of finance and investing for financial professionals and investment advisors;” “electronic transmission of pictures, images, audio and/or video via online forums for financial professionals and investment advisors;” and “transmission of financial, investment and legal news," in view of the registered mark ENSEMBLE for "Telecommunication services, namely, routing calls, SMS messages, and push-notifications to local third-party motorized vehicle operators and food and grocery delivery agents in the vicinity of the caller using mobile phones; Telecommunications, namely, transfer of data by telecommunications."]
In re Orlando Bathing Suit, LLC, Serial No. 97782597 (November 4, 2024) [not precedential] (Opinion by Judge Mark A. Thurmon). [Section 2(d) refusal of the mark VITAMIN SEA for "swimwear" in view of the identical mark registered for, inter alia, "scarves."]
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TTABlogger comment: In the first case, Applicant submitted 58,921 pages of evidence. The Board was not pleased.
Text Copyright John L. Welch 2024.
posted by John L. Welch @ 11/07/2024
3 comments
3 Comments:
All three were affirmed
The Board gave WAY too much scope to "transfer of data by telecommunications". That's vague and under what I would argue is now well-established caselaw, when an ID is vague one may look to extrinsic evidence to narrow it. I think the biggest problem with the registration process is the unnecessarily broad scope given to very broad and vague descriptions of services like that. IDs like "medical services" and marketing services" must be eliminated
It's part of the stacked deck that 2d applicants face. Only recourse is a Section 18 petition to restrict the cited registration
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