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TTA Blog 10/23/2019 06:52
Marty Schwimmer and Yours Truly co-authored an article in the Autumn 2019 issue of World Trademark Review , entitled "U.S. Law Inches Towards Protecting Trademark Reputation Without Use." [pdf ]. Trademark reputation without use is a jurisprudential paradox. Because of the international flow of information, use of a trademark in one country may give rise to a commercially valuable reputation in another where that trademark has not yet been used (at least not by the first owner). The goodwill arising from that reputation could be exploited by another party and consumers could be confused or deceived. This suggests that the reputation should be protected. However, such a proposition is antithetical to the conventional view (under US practice,
TTA Blog 10/22/2019 06:49
[This guest post was written by Stephanie Stella, an associate in the Trademark Group at Wolf, Greenfield & Sacks, P.C.]. The USPTO refused to register the mark SIELLA’S (standard characters) for "skin care products, namely, face moisturizer, face cream, anti-aging cream, acne cream in the nature of organic herbal cream cleanser not for medical purposes, night cream, face oil, eye cream, hand cream," deeming the mark likely to cause confusion with the registered mark CIELA (standard characters) for, inter alia , "non-medicated skin care creams and lotions; non-medicated skin care preparations."
TTA Blog 10/21/2019 06:21
Here are three decisions issued by the TTAB last Friday, the first a Section 2(e)(1) mere descriptiveness refusal, the second a Section 2(e)(4) surname refusal, and the third a Section 2(d) likelihood of confusion refusal. How do you think they came out? Answers in first comment. , Serial No. 86491129 (October 18, 2019) [not precedential] (Opinion by Judge Frances Wolfson). [Section 2(e)(1) refusal of CASTLELOVERS for "Matchmaking services; services, namely, providing an on-line computer database featuring single people interested in meeting other single people" [Note example of use below]]. , Serial No. 87390575 (October 18, 2019) [not precedential] (Opinion by Judge Christen M. English). [Section 2(e)(4) refusal to register KIRSH for "cra.
TTA Blog 10/18/2019 16:36
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:. Section 2(a) - False Association:. Section 2(d) - Likelihood of Confusion:. Section 2(e)(1) - Mere Descriptiveness:. Section 2(e)(4) - Primarily Merely a Surname. Section 2(e)(5) - Functionality:. Genericness:. Nonuse/Specimen of Use/Failure to Function:. Ownership:. Unlawful Use:. Discovery/Evidence/Procedure:. CAFC Opinions:. Other:. Text Copyright John L. Welch 2019.
TTA Blog 10/17/2019 06:24
A divided Board panel reversed a Section 2(d) refusal of MINIBAR SMARTSNAX for packaged snack food "for distribution through refrigerators and food storage cabinets having sensors to detect presence and removal of packages." The panel majority found no likelihood of confusion with the marks SMART SNACKS for candy and THE SMART SNACK for processed nuts. The judges disagreed as to whether the involved goods travel in different channels of trade and whether purchasers of applicant's good will exercise more than ordinary care. , Serial No. 87130884 (October 15, 2019) [not precedential] (Opinion by Judge Jyll Taylor). The Board found the marks to be more similar than dissimilar. Applicant's third-party website and registration evidence was inade.
TTA Blog 10/16/2019 04:56
In an opinion of just over seven pages, the Board affirmed a Section 2(e)(1) refusal to register CONSERVATIVE INSTITUTE for providing on-line information if the fields of politics class 35), entertainment (class 41), and religion (class 45). Applicant feebly pointed to two existing registrations for marks containing the word CONSERVATIVE, but the word was disclaimed in one registration and the other was a Supplemental Registration. Would you have appealed? , Serial No. 87658084 (October 8, 2019) [not precedential] (Opinion by Judge Thomas W. Wellington). Examining Attorney Steven W. Jackson submitted dictionary definitions of CONSERVATIVE and INSTITUTE, as well as printouts from applicant's website that demonstrated "the plain meaning of ea.
TTA Blog 10/11/2019 06:22
A TTAB judge once told me that in 95% of Section 2(d) cases, one can predict the outcome just from looking at the marks and the involved goods/services. Here are three recent decision in Section 2(d) appeals. How do you think these came out? [Answer in first comment]. , Serial No. 87384194 (October 7, 2019) [not precedential] (Opinion by Judge Thomas W. Wellington). [Section 2(d) refusal of BRITE & CLEAN & Design for "Cleaning preparation; water stain removal cleaning preparations; shower cleaning preparation; window cleaning preparation; bathroom cleaning preparation; glass cleaning preparation; cleaning preparation in powder form; cleaning wipes impregnated with a cleaning preparation; none of the foregoing for use with eyeglasses" in vie.
TTA Blog 10/09/2019 05:39
The USPTO refused to register the mark RAINFOREST NUTRITION for dietary and nutritional supplements [NUTRITION disclaimed], finding a likelihood of confusion with the registered mark RAINFOREST ANIMALZ for "nutritional supplements." The goods overlap and presumably travel in the same trade channels to the same classes of consumers. But what about the marks? Applicant argued that RAINFOREST is a weak formative in light of numerous third-party uses and registrations. How do you think this came out? , Serial No. 87635385 (October 7, 2019) [not precedential] (Opinion by Judge Michael B. Adlin). The overlap in goods, trade channels, and classes of consumers weighed "heavily" in favor of a finding of likely confusion. Moreover, when the goods are.
TTA Blog 10/04/2019 05:15
PAVE: Promoting Awareness, Victim Empowerment filed a Section 1(b) application to register the mark SafeBAE for “Providing emotional counseling and emotional support services for victims of sexual violence." Shael Norris opposed, claiming that she is the owner of the mark and therefore that the opposed application was void ab initio . The Board, however, ruled that a Section 1(b) applicant need not be the "owner" of the mark, but need only have a bona fide intention to use the mark. And so the Board dismissed the opposition. , Opposition No. 91234909 (September 26, 2019) [precedential] (Opinion by Judge Thomas W. Wellington). The parties agreed that the sole issue before the Board was "which party owns the mark." However, "a claim that an a.
TTA Blog 10/03/2019 05:29
September 30th was the last day of the USPTO fiscal year. Here are three of the five TTAB decisions issued on that day in Section 2(d) appeals. I'm not giving any hints, so you're on your own. How do you think these appeals came out? [Answer in first comment]. , Serial No. 87782453 (September 30, 2019) [not precedential] (Opinion by Judge Elizabeth A. Dunn). [Section 2(d) refusal of HEALING THROUGH HUNTING for "conducting guided outdoor expeditions" in view of the registered mark HEALING ON THE HUNT for "organizing hunting, fishing, and outdoor trips for wounded combat veterans to help heal"]. , Serial Nos. 87561113 and 87561116 (September 30, 2019) [not precedential] (Opinion by Judge Thomas Shaw). [Section 2(d) refusal of INTREPID STUDIOS.
TTA Blog 10/01/2019 06:20
Standing is a hurdle that TTAB plaintiffs almost always clear. Not this time. The Board dismissed this petition for cancellation of a registration for the mark OCALA HORSE PROPERTIES for “Real estate agencies; Real estate brokerage" because the named petitioner failed to establish "that it is a juristic association under the laws of Florida that could assert the claims alleged or the relief requested in this cancellation proceeding without the participation of individual members in the lawsuit." , Cancellation No. 92061767 (September 26, 2019) [not precedential] (Opinion by Judge Jyll Taylor). Standing is a threshold requirement that the plaintiff must prove in every inter partes proceeding. Section 14 of the Lanham Act states that "[a]ny p.
TTA Blog 09/30/2019 06:27
The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled seven (7) oral hearings for the month of October 2019. Four of the hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. The first hearing listed below will be held at Northwestern Pritzker School of Law in Chicago. The hearings for the last two listed cases will be held at Gaylord National Resort & Convention Center in National Harbor, Maryland. Briefs and other papers for these cases may be found at via the links provided. October 3, 2019 - 1:45 PM: , Opposition No. 91223121 [Section 2(d) opposition to registration of the mark JUSTICE NETWORK for television programming services and video production and distribution, in view of the registe.
TTA Blog 09/27/2019 07:25
Returning once again to failure-to-function land, the TTAB reversed a refusal to register the mark PREDICTIVE ENTREPRENEUR for educational services including seminars in the field of business and entrepreneurship. The Board rejected the USPTO's position that the course offered by Applicant Meredith Madsen would be perceived as a single work and therefore fails to function as a trademark. , Serial No. 87054308 (September 24, 2019) [not precedential] (Opinion by Judge Jonathan Hudis). The title of a single creative work, such as a book, is not considered a trademark and is therefore unregistrable. Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§ 1051, 1052, and 1127; In re Cooper , 254 F.2d 611, 117 USPQ 396, 400 (CCPA 1958). In In re Posthu.
TTA Blog 09/26/2019 07:32
In October 2018, the CAFC issued a spit decision in an appeal from the TTAB's February 21, 2017 ruling [. TTABlogged. ] sustaining oppositions to registration of CORN THINS for "crispbread slices predominantly of corn, namely popped corn cakes," and RICE THINS for "crispbread slices primarily made of rice, namely rice cakes" [CORN and RICE disclaimed].

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