This weekend I went to the TTAB’s FOIA page in an attempt to determine, or at least estimate, the percentage of Section 2(d) likelihood-of-confusion refusals and Section 2(e)(1) mere descriptiveness refusals that were affirmed/reversed by the Board during the calendar year 2015. The highly unscientific results are set out below.
Section 2(d): I counted 223 Section 2(d) refusals, of which 188 were affirmed and 35 reversed. That’s an affirmance rate of about 85%. [Down from a whopping 91% last year and more in line with the past few years].
NB: Some cases involved a mark in standard character and stylized form, and I counted that situation as one refusal.
Section 2(e)(1) mere descriptiveness: Of the 97 Section 2(e)(1) mere descriptiveness refusals, 84 were affirmed and 13 reversed, for an affirmance rate of approximately 86%. That is consistent with estimates that I and others have made in past years.
The only precedential opinion, in the SMART SERIES case, was affirmed.