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Precedential No. 40: TTAB Reverses 2(d) Refusal: Differing Trade Channels and Customers Trump Third-Party Registrations

The Board reversed a Section 2(d) refusal to register the mark MINDPOWER for botanical extracts for use in the manufacture of various products, including nutraceuticals, finding it not likely to cause confusion with the registered mark MIND POWER X for "dietary and nutritional supplements." Third-party registration evidence demonstrated that many entities have adopted a single mark for the involved goods, but Applicant successfully argued that the trade channels and classes of customers for the goods do not overlap. In re HerbalScience Group, LLC, Serial No. 77519313 (September 23, 2010) [precedential].Procedural Issue: The Board first considered the propriety of Applicant's submission of new evidence with its appeal brief. Of course, that is a no-no under Rule 2...continue to full post

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