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TTABlog Quarterly Index: April – June 2018

June 30, 2018July 2, 2018| in The TTABlog| by John L. Welch

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Section 2(a) – Deceptive:

  • TTAB Affirms Section 2(a) Deceptiveness Refusal of P6 CHROME for Nutritional Supplements

Section 2(a) – False Association:

  • TTAB Dismisses Rapper DR. DRE’s Opposition to DR. DRAI for Health-Related Services

Section 2(d) – Likelihood of Confusion:

    • TTAB Reverses 2(d) Refusal of CARAT for Airplane Connectivity Services: Unrelated to Broadcasting Services
    • TTAB Test: Is GUARDIAN AUDIO for Professional Audio Gear Confusable With EGUARDIAN for Consumer Electronics?

TTAB Test: Is NIGHT Confusable with NOCHE for Wine? [Yes]

  • TTAB Test: Are Collectible Toy Figures Related to Plush Toys For Purposes of Section 2(d)? [Yes]
  • TTAB Test: Is “FOUNDIT THEFT RECOVERY” Confusable With “IFI I FOUND IT” for GPS Tracking Devices? [Yes]
  • Finding Beer and Wine Related, TTAB Affirms Section 2(d) Refusals of DEAD BIRD BREWING COMPANY and Dead Bird Design for Beer
  • TTAB Test: Is GAVIOTA for Faucets Confusable With SEAGULL for Water Purification Units?
  • PIRATE PISS for Beer Not Confusable With PYRAT for Rum, Says TTAB
  • Precedential No. 20: Prior Registration of 5IVE RESTAURANT Fails to Shield 5IVE STEAKHOUSE From Section 2(d) Refusal
  • TTAB Test: Are SAVORY ROASTERS and HEARTY ROASTERS Confusable for Pet Food?
  • THE TROPICS for Restaurant Services Confusable With TROPIXX for Nightclub Services, Says TTAB
  • TTAB Says No to PRETTY PLEASE WITH CHERRY ON TOP? for Ice Cream”
  • TTAB Affirms Trifusal of NRG COFFEE for Coffee: 2(d), 2(e)(1) Descriptiveness and Deceptive Misdescriptiveness
  • HONEYHOLE SANDWICHES for Restaurant Services Confusable with HONEY HOLE for Alcoholic Beverages, Says TTAB
  • Precedential No. 17: TTAB Grants Section 2(d) Petition for Cancellation of KEMI OYL Registration; Laches Defense Fails
  • TTAB Shuts Down NJ Turnpike Authority’s 2(d) Opposition to JERSEY BOARDWALK PIZZA logo
  • TTAB Test: Which of these Three Section 2(d) Refusals Was Reversed?
  • Finding Marketplace Strength and Actual Confusion, TTAB Sustains “TOOLS USA” Opposition
  • TTAB Dismisses Rapper DR. DRE’s Opposition to DR. DRAI for Health-Related Services
  • Finding Distilled Spirits Related to Wine, TTAB Sustains 2(d) Opposition to BEAR CREEK DISTILLERY
  • WYHA? TTAB Finds “THE CYRKLE” Confusable with “THE CIRCLE” for Live Musical Services
  • TTAB Reverses 2(d) Refusal of THE AUBURN SCHOOL – Not Confusable with AUBURN UNIVERSITY
  • TTAB Test: Are Aerated Waters Related to Orange Juice for Section 2(d) Purposes?
  • TTAB Test: Is KRANKY KOOKYS for Cookies Confusable With KRANKY for Chocolate Covered Corn Flakes?
  • TTAB Test: Is DATA ATOM Confusable with ATOMIC DATA for Computer Support Services?
  • Precedential No. 11: Despite Court Non-Infringement Ruling, TTAB Affirms 2(d) Refusal of MOAB for Automobiles and Parts
  • TTAB Test: Is “VOLKS PILS” For Beer Confusable With “VOLK” for Vodka?
  • TTAB Test: Is ROSA VELENO for Music Production Services Confusable with VELENO for Guitars?
  • Precedential No. 10: LAROQUE & Design Confusable With LAROQUE for French Wines From Different Regions

Section 2(e)(1) – Mere Descriptiveness:

  • TTAB Affirms Descriptiveness Refusal of “USR ID” For Security Software and Services
  • TTAB Finds HOUSTON BITES Merely Descriptive of Website Featuring Restaurants
  • TTAB Affirms Trifusal of NRG for Coffee: 2(d), 2(e)(1) Descriptiveness and Deceptive Misdescriptiveness
  • TTAB Test: Which One of These Three Mere Descriptiveness Refusals Was Reversed?
  • ROSSO GRANATO Merely Descriptive, Fails to Function as a Trademark for Wine, Says TTAB
  • TTAB Test: Is BRAND THERAPY Merely Descriptive of Graphic Design Consulting Services?

Section 2(e)(1) – Deceptive Misdescriptiveness:

  • TTAB Affirms Trifusal of NRG for Coffee: 2(d), 2(e)(1) Descriptiveness and Deceptive Misdescriptiveness

Section 2(e)(2) – Primarily Geographically Descriptive:

  • TTAB Sustains Opposition to SCOTTSDALE TAXI: Geographically Descriptive and Lacks Acquired Distinctiveness
  • TTAB Affirms Geographical Descriptiveness Refusal of LEIPER’S FORK DISTILLERY for Clothing

Section 2(e)(3) – Primarily Geographically Deceptively Misdescriptive:

  • TTAB Reverses Section 2(e)(3) Geographical Deceptiveness Refusal of LAROMANA for Brown Sugar

Section 2(e)(4) – Primarily Merely a Surname:

  • TTAB Test: SOLIS Means Sun In Latin – Is It Primarily Merely a Surname?

Section 2(e)(5) – Functionality:

  • Precedential No. 12: TTAB Rejects Functionality Claim But Finds Truck Light Configuration Lacks Acquired Distinctiveness

Section 2(f) – Acquired Distinctiveness:

  • TTAB Reverses PETROSSIAN Surname Refusal Due to Transferred Distinctiveness
  • TTAB Sustains Opposition to SCOTTSDALE TAXI: Geographically Descriptive and Lacks Acquired Distinctiveness
  • PET GRASS Lacks Acquired Distinctiveness for Pet Food and Pet Store Services, Says TTAB
  • Precedential No. 14: TTAB Rules that a Phrase May Have Acquired Distinctiveness Even Though It Contains a Generic Term

Abandonment:

  • Precedential No. 16: TTAB Orders Cancellation of Four “GIDGET” Registrations Due to Abandonment

Fraud:

  • Despite Phony Specimen of Use, TTAB Finds No Fraud, Dismisses COPPER 88 Opposition
  • TTAB Denies Motion to Add Bogus Fraud Claim to Petition for Cancellation

Genericness:

  • CAFC Vacates and Remands: TTAB Applied Wrong Test in Finding ZERO Not Generic for Soft Drinks
  • TTAB Test: Is “THE MASTER CLASS” Generic For Educational Services in the Field of Beauty?
  • TTAB Finds “THE JOINT” Generic for …. Guess What?

Laches:

  • Precedential No. 17: TTAB Grants Section 2(d) Petition for Cancellation of KEMI OYL Registration; Laches Defense Fails
  • Precedential No. 15: Laches Dooms Petition to Cancel TRAILERTRADERS.COM Supplemental Registration

Nonuse/Abandonment/Specimen of Use/Failure to Function:

  • TTAB Test: Are These Specimens of Use Acceptable for Bottle Caps?
  • ROSSO GRANATO Merely Descriptive, Fails to Function as a Trademark for Wine, Says TTAB
  • TTAB Affirms Rejection of TRUWALLET Specimen of Use for Lack of Use with Recited Services
  • TTAB Affirms Refusal of Bottle Shape for Mezcal: Lacks Inherent Distinctiveness and Fails to Function as a Trademark

Discovery/Evidence/Procedure::

  • Precedential No. 21: TTAB Extends Safer Requirements to Internet Evidence Submitted by Applicants
  • Precedential No. 19: TTAB Rules that Evidence From A Website No Longer Active Is Not Probative
  • Precedential No. 18: TTAB Extends Safer Rule to Internet Evidence During Ex Parte Prosecution
  • Precedential No. 13: TTAB Denies Motion to Strike Pre-Trial Disclosures of Authenticating Witnesses
  • Precedential No. 11: Despite Court Non-Infringement Ruling, TTAB Affirms 2(d) Refusal of MOAB for Automobiles and Parts

CAFC Decisions:

  • Professor McCarthy Critiques the CAFC’s ZERO Decision
  • CAFC Vacates and Remands: TTAB Applied Wrong Test in Finding ZERO Not Generic for Soft Drinks

Recommended Reading:

  • Professor McCarthy Critiques the CAFC’s ZERO Decision
  • Recommended Reading: TTAB Chief Judge Rogers Interview
  • Ted Davis: 2018 Annual Review of Trademark Cases

Other:

  • TTABlog Quarterly Index: April – June 2018
  • USPTO Exam Guide 2-18: Scandalousness Refusals on Hold Pending Final Resolution of In re Brunetti
  • TTAB Posts May 2018 Hearing Schedule
  • TTAB Posts April 2018 Hearing Schedule

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