TTABlog Test: Which of These Three Section 2(d) Refusals Was/Were Overturned on Appeal?
The TTAB affirmance rate for Section 2(d) appeals last year fell just under 90%. So far this year it a bit lower, but the year is young. Here are three recent Board decisions, at least one of which reversed the refusal. How do you think they came out? [Answer in first comment].
In re Ayablu Inc., Serial No. 97904206 (March 6, 2025) [not precedential] (Opinion by Judge David K. Heasley). [Section 2(d) refusal of HONEYBEE REWARDS PROGRAM for "Administration of a customer loyalty program which provides discounts for the company’s goods and loyalty points to be used toward purchase of the company’s goods; Arranging and conducting incentive reward programs to promote the sale of infant and children’s apparel and related accessories" [REWARDS PROGRAM disclaimed] in view of the registered mark HONEY BEE for "Women’s clothing, namely, tops, pants, skirts, dresses, blouses, swimwear and cover ups."]
In re Namchak Foundation, Serial No. 97150350 (March 6, 2025) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of COMPASSION IN ACTION for "Religious and spiritual services, namely, providing gatherings and retreats to develop and enhance the spiritual lives of individuals interested in the teachings and practices of the Namchak Tibetan Buddhist Fellowship" in view of the identical mark registered for "religious and charitable services namely providing meals for indigent people, residential care for homeless men, gifts for elderly shut-ins, gifts for patients in hospitals, rest homes and infirmaries, gifts for imprisoned persons, and gift packages to members of the armed forces."]
In re Manic Panic N.Y.C., Inc., Serial No. 97928060 (March 7, 2025) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Section 2(d) refusal of SEA NYMPH for "wigs" in view of the registered mark NYMPH for, inter alia, false beards and false mustaches.]
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Text Copyright John L. Welch 2025.
posted by John L. Welch @ 3/11/2025
4 comments
4 Comments:
The second one was reversed.
The second one was an interesting read, with its focus on the difference between website evidence and evidence of third-party registrations in showing relatedness of goods and services.
I find it strange that the Board included their over-used disclaimer that "Perhaps on a more developed record we might find otherwise". Why do they state this? It's especially out of place here where the description of services in the application is SO specific that it seems unlikely that there is ANY third party use evidence of the same services, much less that there might be any evidence that shows the same services being offered along with the services of the cited registration under the same mark. Did the Board truly mean to state that the evidence had to relate to the Namchak Tibetan Buddhist Fellowship (as they clearly did)? I would think that third party use evidence of any type of spiritual gathering and retreat services would be relevant, but this suggests that one can almost 100% avoid a 2(d) refusal by being very specific in the ID to be almost certain that nobody else offers that exact service (or goods). Sure, that would narrow the scope of protection, but much of that narrowing can be gained back by the "related goods" doctrine.
Gene: this reminds me of the dissent in the ECOTWEED case, where Judge Thurmon argued that one should keep in mind the restriction in the identification of goods (to shows made from recycled materials). The majority opinion rejected that idea. But here the Board found the restriction crucial.
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