TTABlog Quarterly Index: July - September 2020

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Section 2(a) - Deceptiveness:

• TTAB Affirms 2(a) Deceptiveness Refusal of SIKSILK for Clothing

Section 2(a) - False Connection:

• TTAB Reverses Section 2(a) False Connection Refusal of GIPA for Intellectual Property Services

Section 2(c) Consent to Register:

• Rejecting First Amendment Claim, TTAB Affirms Section 2(c) Refusal of TRUMP TOO SMALL for Shirts

Section 2(d) - Likelihood of Confusion:

• FOUNDATIONAL MEDICINE REVIEW Confusable With FOUNDATION MEDICINE for Medical Publications, Says TTAB
• TTABlog 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 Services
• TTABlog Test: Is CLINCH PICK for Knives Confusable with CLINCH DRIVE for Wrenches?[No]
• Lego's BRICKHEADZ Applications Run Into TTABrick Wall
• TTABlog Test: Try Your Luck on these Three Recent Section 2(d) Appeals
• TTABlog 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 Confusion
• TTABlog 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 Goods
• JEAN LEON'S LA SCALA for Restaurant Services Confusable With JEAN LEON for Wine, Says TTAB
• TTAB Dismisses Opposition to SKY CINEMAS: Not Confusable with SKY NEWS for News Reporting Services
• TTABlog 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 Confusion
• TTABlog 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. 25: TTAB Affirms Section 2(e)(5) Functionality Refusal of Saw Blade Configuration

Section 2(f) - Acquired Distinctiveness:

• "DOOR-IN-DOOR" Lacks Acquired Distinctiveness for Electric Refrigerators, Says TTABPrecedential No. 26: TTAB Rejects 2(f) Acquired Distinctiveness Claim for GUARANTEED RATE for Mortgage Lending Services
• Reversing Section 2(e)(1) Refusal, TTAB Finds "MINKY COUTURE" Has Acquired Distinctiveness for Blankets

Genericness:

• TTAB Finds "TRIPLE CLEANED CORN" Generic for . . . . Guess What?
• Precedential No. 30: TTAB Finds "GRUYERE" to be Generic for ... Guess What?
• TTABLOG TEST: Is D'AVOCADO Generic for Avocado-Based Chocolate Products?
• Ruling That "generic.com" Terms May Be Registrable, Supreme Court Affirms Fourth Circuit BOOKING.COM Judgment

Lack of Bona Fide Intent:

• Precedential No. 29: TTAB Sustains Opposition to Section 66(a) Application due to Lack of Bona Fide Intent

Unacceptable Specimen/Failure-to-Function/Illegal Use:

• Rejecting Attack on USPTO's "Legal Use" Requirement, TTAB Upholds Refusal to Register NATURAL LEAF CBD for Supplements
• Three Recent Affirmances in Unacceptable Specimens of Use Cases
• Precedential No. 34: TTAB Rules That gTLD ".CAM" is Incapable of Functioning as a Source Indicator
• "THE NEXT MOVE IS YOURS" Fails to Function as a Service Mark for Real Estate Services, Says TTAB
• BORN IN THE USA Fails to Function as a Trademark for Clothing, Says TTAB
• RIBBONS OF HOPE Fails to Function as a Trademark for Pasta, Says TTAB

Discovery/Evidence/Procedure:

• Precedential No. 33: TTAB Explains Safer Rule for Internet Evidence
• Precedential No. 32: TTAB Strikes Untimely Supplemental Expert Report
• Precedential No. 28: TTAB Rejects Amendment to Goods First Made in Applicant's Appeal Brief
• Precedential No.27: TTAB Grants FRCP 56(d) Motion for Discovery to Avoid Summary Judgment Ambush

Laches/Acquiescence/Estoppel:

• Precedential No. 31: Laches, Acquiescence, and No Inevitable Confusion Doom Attack on BROOKLYN BREW SHOP for Beer Making Kits

Concurrent Use:

• TTAB Denies Motion to Re-open Concurrent Use Proceeding to Remove Geographical Restriction

CAFC Decisions:

• CAFC Affirms TTAB Entry of Judgment As Sanction for Failure to Comply with Discovery Orders
• CAFC Dismisses Royal Crown's Appeal in ZERO Oppositions Based On Coke's Disclaimer of ZERO
• Divided CAFC Panel Reverses TTAB: NAKED Condom Petitioner Has Standing Despite Contractual Estoppel
• CAFC Remands COOKINPELLETS.COM Case to TTAB in Light of BOOKING. COM decision

Supreme Court Decisions:

• Supreme Court Sends BOOKING.COM Attorney's Fees Ruling Back to Fourth Circuit In View of Peter v. Nantkwest
• Ruling That "generic.com" Terms May Be Registrable, Supreme Court Affirms Fourth Circuit BOOKING.COM Judgment

Recommended Reading:

• Recommended Reading: Prof. Christine Farley, "The Lost Unfair Competition Law"
• Recommended Reading: "A Tale of Two Cups: Acquired Distinctiveness and Survey Evidence Before the TTAB"
  
• Prof. Lisa Ramsey, "Using Failure to Function Doctrine to Protect Free Speech and Competition in Trademark Law"

Other:

• Decisions of the TTAB and the CAFC on Registrability Issues July 2019 to August 2020
• TTAB Posts September 2020 (Video) Hearing Schedule
• TTAB Posts August 2020 (Video?) Hearing Schedule
• TTAB Posts July 2020 (Video) Hearing Schedule

Text Copyright John L. Welch 2020.