TTABlog Quarterly Index: July - September 2022

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Section 2(a) - False Suggestion of a Connection:

• TTAB Upholds Section 2(a) False Connection Refusal of US SPACE FORCE for License Plate Frames, Umbrellas
• Precedential No. 24: "PURPLE RAIN" for Dietary Supplements Falsely Suggests a Connection with Prince, Says TTAB

Section 2(b) - Governmental Insignia:>

• Precedential No. 19: TTAB Affirms Section 2(b) Refusals of Orange County "Unofficial" Insignia

Section 2(d) - Likelihood of Confusion:

• TTABlog Test: Is "MOXIE SCRUBS" & Design Confusable with "MOXIE" for Clothing? [No]
• TTABlog Test: (No WYHAs Here!) How Did These Three Recent Section 2(d) Appeals Turn Out?
• 13th DuPont Factor Saves Four "GAIA" Marks For Supplements From Section 2(d) Refusal
• Precedential No. 28: Nunc Pro Tunc Assignment Confirming Oral Agreement Suffices to Establish Priority
• Precedential No. 26: TTAB Denies "HAPPIEST HOUR" Cancellation Petition for Failure to Prove Priority Via Technical or Analogous TM Use
• TTABlog Test: Is "THE CHIRO PLACE" Confusable With "THE CHIRO SPOT" for Chiropractic Services? [Yes]TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTABlog Test: Is HI-FI Confusable With HIGH FIDELITY for Overlapping Marketing Services

• TTAB Orders Cancellation of CAPTAIN CANNABIS Registration for Comic Books: Petitioner Proved Priority By Use Analogous to Trademark Use
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTABlog Test: Are Jewelry and Clothing Related to Drinking Vessels and Tableware for Section 2(d) Purposes? [Yes]
• Crowded Field of Third-Party Uses Yields Reversal of Section 2(d) Refusal of EVOLVE LIFE SYSTEMS for Personal Development Counseling
• TTABlog Test: Which of These Three Recent Section 2(d) Appeals Resulted in Reversal(s)?
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTABlog Test: Are Battery Monitors Related to Fault Diagnosis Instruments? [No]
• TTABlog Test: Is "CALI BANH MI" Confusable With "BÁNH MÌ & CHÈ CALI" for Restaurant Services? [Yes]
• TTABlog Test: Eight Section 2(d) Refusals (in Three Opinions), Two Refusals Reversed - Which Ones?
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTAB Sustains Chicago Cubs' Opposition to a "C" Design for Clothing Items
• TTAB Finds "YOLA'S ALL NATURAL" for Skincare Products Confusable With "YOLA BEAUTY" (Stylized) for Retail Store Services Featuring Same
• TTABlog Test: Is "ELEPHANT LEARNING MATH ACADAMY" Confusable With "ELEPHANT GAMES" for Computer Game Software?
• TTABlog Test: How Did These Three Recent Section 2(d) Appeals Turn Out?
• TTAB Finds WORKSUITES Merely Descriptive and Confusable With SUITEWORK for Office Space Leasing
• TTABlog Test: Is ELLA FRESH & Design for Fruits and Vegetables Confusable With ELLA ROSE FARM for Flowers? [Yes]

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

• Precedential No. 20: TTAB Finds "SMART BEZEL" Merely Descriptive of Electronic Sensor Modules for Home Automation Systems
• TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?
• TTABlog Test: Is "SUPERSALT" Merely Descriptive of Dietary Supplements? [Yes]
• TTAB Finds WORKSUITES Merely Descriptive and Confusable With SUITEWORK for Office Space Leasing

Deceptive Misdescriptiveness:

• TTAB Finds "EQ LEARNING" Deceptively Misdescriptive of Employment Counseling Services

Section 2(e)(3) - Primarily Merely Geographically Descriptive:

• TTABlog Test: Is AMERICAN STOGIES Primarily Geographically Deceptively Misdescriptive of Cigars Not from the USA? [No]

Section 2(f) - Acquired Distinctiveness:

• Lotus-Shaped Acupressure Mat Product Design Lacks Acquired Distinctiveness and Fails to Function as a Service Mark
• Precedential No. 18: TTAB Denies LAGUNA CANDLES Cancellation Petition, Finding Acquired Distinctiveness and No Claim Preclusion
• TTAB Denies Cancellation Petition for Failure to Prove Acquired Distinctiveness of Petitioner's Common Law Marks

Genericness:

• TTAB Reverses Genericness Refusal of "DOCK BLOCKS" for Modular Floating Non-Metal Docks Due to Mixed Evidentiary Record
• TTAB Affirms Genericness Refusal of FILATI (Stylized) for ... Guess What?

Abandonment:

• Precedential No. 21: TTAB Orders Cancellation of OLD SCHOOL Registrations Due to Abandonment - Intent to Sell Mark Is Not Intent to Use

Failure-to-Function:

• TTAB Trifusal: ALEMBIC PHARMACEUTICALS Refusals Affirmed - Likelihood of Confusion, Failure-to-Function, and Nonuse
• Precedential No. 23: FUCK Fails to Function As a Source Indicator for Jewelry, Bags, and Retail Services, Says TTAB
• "EL CABO" Character Name in TV Show Fails to Function as a Source Indicator for Entertainment Services
• TTAB Reverses Failure-to-Function Refusal of BLACK BIRTHING BILL OF RIGHTS for Promotional Services
• Lotus-Shaped Acupressure Mat Product Design Lacks Acquired Distinctiveness and Fails to Function as a Service Mark
• "BUILT BY GOD" Fails to Function as a Trademark for Clothing, Says TTAB

Nonownership:

• Precedential No. 22: TTAB Grants Petition to Cancel CHENOA FUND Registration for Mortgage Services Due to Non-Ownership

Specimens of Use/Nonuse/Non Ownership:

• TTAB Reverses Specimen Refusal: One Specimen May Support Products in Multiple Classes
• TTAB Upholds Refusal of "THIS IS FOR MY GIRLS" for Musical Services Because It Appears Only as a Song Title on Applicant's Specimens of Use

Procedural Issues/Discovery:

• Precedential No. 27: TTAB Dismisses PepsiCo's "TORTRIX" Opposition Due to Inadequate Pleading of Misrepresentation of Source, Lack of Bona Fide Intent, and Fraud
• Precedential No. 25: TTAB Applicant's 41-Page ACR Brief Stricken As Too Long, But Re-Filing of 25-Page Brief Allowed
• TTAB Dismisses JEWEL HUNTER Oppposition: Opposer's Faulty Testimony Declarations Failed to Establish "Standing"
• Precedential No. 18: TTAB Denies LAGUNA CANDLES Cancellation Petition, Finding Acquired Distinctiveness and No Claim Preclusion
• Precedential No. 17: TTAB Dismisses "HUNGRY" Section 2(d) Opposition Due to False Testimony and Spoliation of Evidence
• STARPOINT Cancellation Petitioner Fails to Prove Statutory Standing

CAFC Decisions:

• CAFC Reverses TTAB's THUMS UP and LIMCA Decision: Coca-Cola Failed to Prove Use or Reputation in the U.S. and So Lacked Statutory Standing

Recommended Reading:

• Recommended Reading: The Trademark Reporter, July-August 2022 Issue
• Recommended Reading: The Trademark Reporter, May-June 2022 Issue
• Recommended Reading: Prof. Lorelei Ritchie, "Recognizing the "Use"-fulness of Evidence at the TTAB"

Other:

• M.D. Florida Finds Dog Bone-Shaped Dock Connector Functional, Grants Judgment on the Pleadings Denying Trade Dress Claim
• Jack Daniel's Seeks Supreme Court Review of Ninth Circuit's "Bad Spaniels" Ruling
• TTAB Posts September 2022 Hearing Schedule: Six Virtual and Two In-Person Hearings
• TTABlog Test: JEWEL BOX Confusable With GEM BOX? Anti-Aging Preparations Related to Clothing? ECO-BRICKS Merely Descriptive of Toy Blocks?
• N.D. Ohio Retains Jurisdiction over Plaintiff's Cancellation Claim After Granting Summary Judgment Aganst its Infringement and Unfair Competition Claims
• E.D. Pa. Dismisses PELOTON Complaint for Review of TTAB Decision Due to Lack of Personal Jurisdiction
• TTAB Posts August 2022 (Video) Hearing Schedule
• Trademark Public Advisory Committee (TPAC) Quarterly Meeting: July 29, 2022 at 11:30 AM (ET)

Text Copyright John L. Welch 2022.