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TTAB Reverses 2(d) Refusal of "WISH YOU WERE HERE" for Underwear

The "strong differences" in the marks, coupled with the differences in the goods, led the Board to reverse a Section 2(d) refusal to register WISH YOU WERE HERE (in standard character form) for underwear. The Examining Attorney maintained that the mark was likely to cause confusion with the mark depicted immediately below, for "women?s dresses, shirts, skirts and apparel." In re Diane R. Gunter, Serial No. 77227513 (August 20, 2010) [not precedential].The Marks: The Board agreed with Applicant Gunter that the Examining Attorney improperly focused on the common phrase "wish you were here."The words ?Love, Jetsy? and the overall postcard design are very noticeable and they have the effect of catching the eye and engaging the viewer before the viewer even looks at the phrase ?Wish you were here!? In this context, the ?Wish you were here!? phrase is a postcard cliché that acts merely to reinforce the design element of the postcard, and would not otherwise make an impression on the viewer...continue to full post

Full post as published by The TTABlog on August 25, 2010 (boomark / email).