As I do every year since Hector was a pup, I have reviewed the TTAB’s FOIA page in an attempt to estimate the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board during the last calendar year (2017). I counted 239 Section 2(d) refusals, of which 209 were affirmed and 30 reversed. That’s an affirmance rate of about 87.4%. So the odds are almost 9 out of 10 for affirmance. [Slightly lower than last year’s 91% rate, but then this is not an exact science].
Only one of the Section 2(d) decisions was precedential: In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790 (TTAB 2017) (Opinion by Judge Bergsman). In USA Warriors, The Board affirmed a Section 2(d) refusal of the mark shown below left, for “arranging and conducting ice hockey programs for injured and disabled members and veterans,” finding it confusable with the mark shown below right, for entertainment and association services related to hockey. Applicant did not dispute that the marks are similar and the services related. Instead it contended that the registrant had consented to registration of the applied-for mark, and that under In re Strategic Partners, Inc., 102 USPQ2d 1397 (TTAB 2012), the 13th du Pont factor should be considered in light of applicant’s ownership of a registration for a slightly different color logo for the same services. Consent: Applicant pointed to the display of its registered mark on opposer’s website; however, there was no written consent agreement, and the Board will not infer that the registrant consented to registration based on its apparent knowledge of the previously-registered, slightly different mark. 13th du Pont Factor: In Strategic Partners the Board reversed a Section 2(d) refusal based on applicant’s ownership of a substantially similar mark that had co-existed with the cited registered mark for more than five years. Here, however, the involved marks had co-existed for less than five years, and applicant’s registration is still subject to possible cancellation under Section 2(d). This three-and-one-half year co-existence was a relevant consideration, but it did not outweigh the other du Pont factors