Intellectual Property Law

TTABlog Test: Which of These Mere Descriptiveness Refusals Was/Were Reversed?

Posted on November 05, 2020
The TTAB recently ruled on the appeals from three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them, keeping in mind that last year the Board affirmed, by my calculation, about 93% these refusals. Answer(s) will be found in the first comment...

Precedential No. 38: Floyd Mayweather t.k.o.'d: TTAB Affirms Failure-to-Function Refusal of PAST PRESENT FUTURE for T-shirts

Posted on November 04, 2020
Undefeated boxing champion Floyd Mayweather, Jr., suffered a TTAB t.k.o. (trademark knock-out) in his bout to register the phrase PAST PRESENT FUTURE for "T-shirts." Applicant argued, inter alia, that "consumers recognize the PAST PRESENT FUTURE Mark as affiliated with Floyd Mayweather, and members of the purchasing public have come to recognize [it] as a trademark identifying Appellant and its services and goods...

Precedential No. 37: ".SUCKS" gTLD Fails to Function as Service Mark, Says TTAB

Posted on November 03, 2020
In yet another failure-to-function ruling, the Board affirmed refusals to register the term .SUCKS in the stylized form shown below, as a service mark for "Domain registry operator services related to the gTLD in the mark, in International Class 42," and the standard character mark ...

Kira-Khanh McCarthy Reports on October 30th TPAC Meeting

Posted on November 03, 2020
[This guest post was written by Kira-Khanh McCarthy, a law clerk in the Trademark Group at Wolf, Greenfield & Sacks, P.C.]. The USPTO held an online public meeting of the Trademark Public Advisory Committee (TPAC) on October 30, 2020. The agenda and list of speakers may be found here...

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Precedential No. 36: TTAB Affirms Failure-to-Function Refusal of TEXAS LOVE for T-Shirts, Rejects Equal Protection Argument

Posted on November 02, 2020
The Board upheld a failure-to-function refusal of TEXAS LOVE for "hats, shirts," finding that the phrase "only serves as an expression of a concept or sentiment, and is widely used by third parties, [and so] it would not be perceived as an indicator of source in the context of Applicant?s identified goods...

TTAB Posts November 2020 (Video) Hearing Schedule

Posted on October 30, 2020
The Trademark Trial and Appeal Board (Tee-Tee-?-Bee) has scheduled six (VI) oral hearings for the month of November 2020. The hearings will be held via video. Briefs and other papers for each case may be found at TTABVUE via the links provided.November 5, 2020 - 11 AM: In re Apple Inc...

CAFC Upholds TTAB's Corcamore Sanction and "Standing" Decision, Rules that Lexmark Applies to Cancellation Proceedings

Posted on October 29, 2020
The CAFC affirmed the TTAB's decision in SFM, LLC v. Corcamore, LLC, 129 USPQ2d 1072 (TTAB 2018) [TTABlogged here], upholding the Board's entry of judgment as a sanction against Corcamore, LLC due to its misconduct. Corcamore contended that because SFM lacked standing to petition for cancellation, the Board erred in entering judgment...

Ted Davis: 2020 Annual Review of U.S. Federal Case Law and TTAB Developments

Posted on October 28, 2020
Here is a link to Ted Davis's 2020 "Annual Review of U.S. Federal Case Law and TTAB Developments." Thank you, Ted, for permitting me to post this link.Ted DavisAs a companion piece of sorts, here is a link to my outline of CAFC and TTAB decisions for the past 14 months...

Finding BOTOX Famous, TTAB Sustains Section 2(d) Opposition to GS GEMS STYLE HAIR BOTOX for Hair Care Products

Posted on October 27, 2020
The Board sustained this opposition to registration of GS GEMS STYLE HAIR BOTOX for various non-medicated hair care products [STYLE HAIR BOTOX disclaimed], finding confusion likely with the famous mark BOTOX for pharmaceutical preparations, including preparations for the treatment of wrinkles...

TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?

Posted on October 26, 2020
A TTAB judge once said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three recent decisions in appeals from Section 2(d) refusals. No hints this time. How do you think these came out? [Answers in first comment]...

Precedential No. 35: Bad Specimen of Use and Mere Descriptiveness Sink THERMAL MATRIX for Dental Appliance Liner

Posted on October 23, 2020
In a soporific but precedential decision, the Board affirmed two of three refusals of the proposed mark THERMAL MATRIX for a "Heat responsive and malleable liner that is an integral component of an oral dental appliance used in the mouth and worn over the teeth of an individual while sleeping to reduce the effects of snoring and sleep apnea" [THERMAL disclaimed]...

TTAB Finds "WA529" Primarily Geographically Descriptive of Pre-Paid Educational Financial Services

Posted on October 22, 2020
The Board affirmed a Section 2(e)(2) refusal to register the marks WA529, in standard character and design form (below), for "Pre-paid educational financial services, namely, allowing purchasers to make advance payments towards future continuing education, and providing information relating to education financing," finding the marks to be primarily geographically descriptive of the services...

TTABlog Test: Is CITRUS CLUB for Cocktail Lounge Services Confusable With CITRUS KITCHEN for Restaurant Services?

Posted on October 21, 2020
The USPTO refused to register the mark CITRUS CLUB for "cocktail lounge services" [CLUB disclaimed], finding confusion likely with the registered mark CITRUS KITCHEN, in standard character and design form, for "restaurant services" [KITCHEN disclaimed]...

TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?

Posted on October 20, 2020
The TTAB recently ruled on the appeals from three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them, keeping in mind that the Board affirms, by my calculation, some 90% of these refusals. Answer(s) will be found in the first comment...

MILLENNIAL FALCON for Live Entertainment Services Confusable with Star Wars' MILLENNIUM FALCON, Says TTAB

Posted on October 19, 2020
In an case decided under the ACR regime, the Board sustained Lucasfilm's opposition to registration of MILLENNIAL FALCON for live entertainment and production services, finding confusion likely with the mark MILLENNIUM FALCON, registered for toy vehicles and used for a entertainment services, sound recordings, live musical concerts, films, television programs, computer and video games, comic books, amusement parks, games, and clothing...

Decisions of the Supreme Court, the CAFC, and the TTAB on Registrability Issues: July 2019 ? September 2020

Posted on October 16, 2020
I have been writing the monthly "Inside this Issue" section of Allen's Trademark Digest for about twenty years, and occasionally contribute an article under another section called "Keeping Tabs on the TTAB®." The upcoming November 2020 issue includes my article entitled, "Decisions of the Supreme Court, the Federal Circuit, and the Trademark Trial and Appeal Board on Registrability Issues: July 2019 ? September 2020...

TTABlog Test: Is Beer Related to "Alcoholic Beverages Except Beer" for Section 2(d) Purposes?

Posted on October 15, 2020
We often scoff at the TTAB's pronouncements that there is no per se rule that all alcoholic beverages are related, but put your cynicism aside while you read this case. The Board sustained in part an opposition to registration of the mark EIDOLON for "spirits, excluding distilled blue agave liquor and mezcal; wine," finding confusion likely with Campari's registered mark ESPOLON for "alcoholic beverages except beers...

TTABlog Test: How Did These Three Section 2(d) Appeals Turn Out?

Posted on October 14, 2020
A TTAB judge once said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three recent decisions in appeals from Section 2(d) refusals. No hints this time. How do you think these came out? [Answers in first comment]...

TTABlog Test: Is MASTER RANCHER Confusable With RANCHMASTER for Footwear?

Posted on October 13, 2020
The USPTO refused to register MASTER RANCHER, finding a likelihood of confusion with the registered mark RANCHMASTER, both for footwear. Applicant True Value argued that the meaning and commercial impressions of RANCHMASTER and MASTER RANCHER are distinct, making confusion therefore unlikely, that "MASTER" is a house mark, has a family of MASTER marks, and that its prior registration of MASTER RANCHER for gloves should pave the way to registration...

Differences between MONSTER and CLEVELAND MONSTERS and Lack of Actual Confusion Lead Board to Dismiss Section 2(d) Opposition

Posted on October 09, 2020
In an exhaustive 77-page decision, the Board dismissed Monster Energy's opposition to registration of the mark CLEVELAND MONSTERS & Design for a variety of goods and services in eight classes, finding that opposer had failed to prove a likelihood of confusion with its mark MONSTER used and/or licensed for beverages and various other products and services...

FEYONCE Confusable with BEYONCE' and YONCÉ for Clothing, Says TTAB

Posted on October 08, 2020
The Board affirmed a refusal to register the mark FEYONCE for various clothing items, finding a likelihood of confusion with the registered marks BEYONCE' and YONCÉ for overlapping clothing items. Both cited registrations include a consent statement indicating that the mark identifies a living individual (Beyonce' Knowles ) whose consent is of record...

TTABlog Test: Are Coffee and Hard Cider Related for Section 2(d) Purposes?

Posted on October 07, 2020
The USPTO refused to register the mark BEAN BLOSSOM for "coffee, but not including alcoholic beverages," finding a likelihood of confusion with the registered mark BEANBLOSSOM for "hard cider." Applicant Cooper Moon argued that the space in its mark creates a different cadence from the cited mark, that the products differ in nature (one being a depressant, the other a stimulant), and that pairs of third-party registrations for marks covering coffee and beer show that in this field confusion between identical marks is unlikely...

TTAB Rejects Abandonment Attack on LEHMAN BROTHERS Mark Now Owned by Barclays

Posted on October 06, 2020
The Board sustained Barclay Capital's opposition to registration of the mark LEHMAN BROTHERS for beer, spirits, and bar and restaurant services, on the ground likelihood of confusion with the identical mark used for "securities brokerage services; investment consulting services; investment banking services; and merchant banking services...

On Remand, TTAB Again Finds GREATER OMAHA Not Confusable with OMAHA STEAKS for Meat

Posted on October 05, 2020
Nearly two years ago, the CAFC vacated (and remanded) the TTAB's  decision in Omaha Steaks International, Inc. v. Greater Omaha Packing Co., Opposition No. 91213527 [TTABlogged here], in which the Board found the mark GREATER OMAHA PROVIDING THE HIGHEST QUALITY BEEF & Design (shown below) for "meat, including boxed beef primal cuts" not likely to cause confusion with the registered mark OMAHA STEAKS for meat...

TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Come Out?

Posted on October 02, 2020
The TTAB recently ruled on the appeals from the three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them, keeping in mind that last year the Board  affirmed, by my calculation, about 93% of these refusals...

TTAB Posts October 2020 Hearing Schedule

Posted on October 01, 2020
The Trademark Trial and Appeal Board (Tee-Tee-?-Bee) has scheduled six (6) oral hearings for the month of October 2020. The hearings will be held via video. Briefs and other papers for each case may be found at TTABVUE via the links provided.October 14, 2020 - 11 AM: In re Simoniz USA, Inc...

TTABlog Quarterly Index: July - September 2020

Posted on September 30, 2020
E-mail subscriptions to the TTABlog are available. Just enter your e-mail address in the box on the right to receive a daily update via Feedblitz. You may also follow the TTABlog on Twitter: @TTABlog.Section 2(a) - Deceptiveness:TTAB Affirms 2(a) Deceptiveness Refusal of SIKSILK for ClothingSection 2(a) - False Connection:TTAB Reverses Section 2(a) False Connection Refusal of GIPA for Intellectual Property ServicesSection 2(c) Consent to Register:Rejecting First Amendment Claim, TTAB Affirms Section 2(c) Refusal of TRUMP TOO SMALL for ShirtsSection 2(d) - Likelihood of Confusion: FOUNDATIONAL MEDICINE REVIEW Confusable With FOUNDATION MEDICINE for Medical Publications, Says TTABTTABlog Test: Is GNARLED ORCHARD for Hard Cider Confusable With GNARLY HEAD for Wine? [Yes]TTABlog Test: Is "MF MIRANDA FRYE & Design" Confusable with "FRYE" for Jewelry? [Yes] TTABlog Test: Is HERITAGE SOUTHEAST BANK Confusable With SOUTHEAST BANK (Stylized), for Banking Services?TTAB Finds BROTHERS CRAFT BREWING for Beer Confusable with BROTHERS for Bar and Restaurant ServicesTTABlog Test: Is CLINCH PICK for Knives Confusable with CLINCH DRIVE for Wrenches?[No] Lego's BRICKHEADZ Applications Run Into TTABrick WallTTABlog Test: Try Your Luck on these Three Recent Section 2(d) AppealsTTABlog Test: Is SALTY BULL BREWING Confusable With TORO SALAO for Restaurant Services?TTABlog Test: How Did these Three Section 2(d) Appeals Come Out?TTABlog Test: How Did these Three Section 2(d) Appeals Come Out?TTAB Affirms Two Refusals of BOCCA DOLCE for Chocolate Confections: Disclaimer Requirement and Likelihood of ConfusionTTABlog Test: Which of these Section 2(d) Refusals Was/Were Reversed?TTABlog Test: Is CHRONICLE for Beer Confusable With CHRONICLE for Restaurant Services?[No]TTAB FInds "THE TOKING DEAD" Confusable with "THE WALKING DEAD" For Clothing and Ancillary GoodsJEAN LEON'S LA SCALA for Restaurant Services Confusable With JEAN LEON for Wine, Says TTABTTAB Dismisses Opposition to SKY CINEMAS: Not Confusable with SKY NEWS for News Reporting ServicesTTABlog Test: Which of These Section 2(d) Refusals Was/Were Reversed?Beyoncé's BLUE IVY CARTER Trademark Application Survives TTAB Opposition TTABlog Test: Is TEQUILUSA for Alcoholic Beverages Confusable with the TEQUILA Certification Mark? [Yes]TTABlog Test: Which of these Section 2(d) Refusals Was/Were Reversed?Section 2(e)(1) - Mere Descriptiveness: TTABlog Test: Is NUB GLOVE Merely Descriptive of Bowling Gloves, Balls, and Hole-Drilling Services?TTAB Affirms Two Refusals of BOCCA DOLCE for Chocolate Confections: Disclaimer Requirement and Likelihood of ConfusionTTABlog Test: How Did These Three Appeals from 2(e)(1) Mere Descriptiveness Refusals Turn Out?TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Come Out?Section 2(e)(4) - Primarily Merely a Surname:TTABlog Test: Is "KEZAR" for Pharmaceutical Products Primarily Merely a Surname? [No]Section 2(e)(5) - Functionality:Precedential No...

TTAB Finds "TRIPLE CLEANED CORN" Generic for . . . . Guess What?

Posted on September 29, 2020
The Board affirmed a refusal to register the proposed mark TRIPLE CLEANED CORN, finding it to be generic for "animal feed of corn." For the sake of completeness, the Board also considered and upheld a refusal to register on the ground of mere descriptiveness and lack of acquired distinctiveness...

All Ohio Annual Institute on Intellectual Property: Video Conference - October 7 & 8th

Posted on September 28, 2020
On Thursday, October 8th at 1PM, Yours Truly, The TTABlogger, will venture into the virtual wilderness of Ohio to present a webinar entitled "Meanwhile, Back at the TTAB," a review of recent developments and decisions at the CAFC and the Board. Register here...

Rejecting Attack on USPTO's "Legal Use" Requirement, TTAB Upholds Refusal to Register NATURAL LEAF CBD for Supplements

Posted on September 28, 2020
In this appeal, Applicant NL LLC conceded that the sale of its CBD-infused supplements (under the mark shown below) would be per se unlawful under federal law. However, it argued that the Lanham Act does not specify that the required "use in commerce" must be lawful, and further that use of its mark is legal under Colorado law and therefore comports with all requirements for federal registration...

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