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Intellectual Property Law

The TTABlog

Focusing on the Trademark Trial and Appeal Board of the US Patent and Trademark Office.

Post Frequency: 3/day

Last Entry: November 05, 2020 at 05:49:00

Precedential No. 13: TTAB Axes Fender Guitar Shapes, Finding Them Generic or Lacking Acquired Distinctiveness

Posted on April 03, 2009
Sixteen guitar companies (and one retailer) banded together to successfully oppose Fender's applications to register the three product configuration marks shown below, for "guitar bodies." In a 75-page opinion, the Board ruled that the designs are generic, and alternatively that Fender's proof of acquired distinctiveness was insufficient to merit registration under Section 2(f)...

Precedential No. 12: TTAB Again Says False Statement of First Use Date is not Fraud

Posted on April 02, 2009
Kathleen Hiraga petitioned to cancel a registration for the mark GARDEN ORGANICS for "fertilizers, soil conditioners and soil amendment for domestic use," asserting that Sylvester J. Arena had fraudulently obtained the registration because he had not used the mark in commerce on the date claimed in the application...

TTAB Posts April 2009 Hearing Schedule

Posted on April 01, 2009
The Trademark Trial and Appeal Board has scheduled eight hearings for the month of April, as listed below. The hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. [The hearing schedule and other details regarding attendance may be found at the TTAB website (lower right-hand corner)]...

Precedential No. 11: Section 2(d) Opposer Fails to Submit Registration Properly, Loses on Priority Issue

Posted on March 31, 2009
Once again, an Opposer who failed to properly introduce a registration into evidence reaped dire consequences. Syngenta Crop Protection, Inc. filed a Section 2(d) opposition to registration of the mark AgMeter for "pesticide detectors" and "evaluation and testing of produce for pesticides," alleging likelihood of confusion with the registered mark AGROMETER for related goods and services...

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TTABlog Quarterly Index: January - March 2009

Posted on March 31, 2009
Here is the 18th TTABlog Quarterly Index. That's right, the blog is nearly four and one-half years old. The first post was on November 8, 2004, and concerned (who else?) Leo Stoller (here). This post in number 1,252.Section 2(a) - scandalous:Finding "A-HOLE PATROL" Scandalous for Online Social Club Screening, TTAB Affirms 2(a) RefusalSection 2(d) - likelihood of confusion:Precedential No...

Precedential No. 10: Irked TTAB Sanctions Counsel for Filing Untenable Motion to Dismiss

Posted on March 30, 2009
Okay, readers, here's the question: an opposition is filed against two applications belonging to your client. While the opposition is pending, the PTO inadvertently issues a registration on one of the applications. What do you do? Would you file a motion for partial dismissal of the opposition as to the application that inadvertently issued to registration? The Attorney for Aqua Gen AS filed such a motion, and the Board was not pleased...

Precedential No. 9: TTAB Dismisses 2(d) Petition to Cancel "DESIGNED TO SELL" Registration

Posted on March 27, 2009
After the excitement of the last two posts (captured in the illustration immediately below), we come back down to earth today with a mundane, albeit precedential, ruling in a Section 2(d) cancellation proceeding. Petitioner Giersch claimed common law rights in the mark DESIGNED2SELL for "providing the services of staging managers and or renters who are placed in residences for the sole purpose of maintaining them through the sales cycle in order to improve the residence's selling potential," and for related interior decorating services and landscaping services...

Precedential No. 8: Divided TTAB Panel Affirms Refusal to Register Chippendales' "Cuffs & Collar Mark"

Posted on March 26, 2009
In a highly entertaining 41-page opinion [stripped here to its bare essentials], a divided TTAB panel affirmed the PTO's refusal to register the "Cuffs & Collar" design mark shown below, finding it not inherently distinctive for "adult entertainment services, namely exotic dancing for women in the nature of live performances...

Wal-Mart Bests Loufrani in TTAB Battle over "Smiling Face" Mark

Posted on March 25, 2009
A long-running TTABattle over the ubiquitous "smiling face" mark ended in victory for Wal-Mart over Franklin Loufrani. The Board sustained Wal-Mart's opposition to registration of the SMILEY & design mark shown below left, and dismissed Loufrani's opposition to Wal-Mart's version shown below right...

TTAB Reverses 2(d) Refusal: PTO Failed to Show "HEART" and "KOKORO" Confusingly Similar for Restaurant Services

Posted on March 24, 2009
The PTO unsuccessfully invoked the doctrine of foreign equivalents in claiming that Applicant's mark HEART for "cocktail lounges; restaurant and bar services" is likely to cause confusion with the registered mark KOKORO, in standard character and design form (below), for restaurant services...

Hip TTAB Finds "STRIP HOP" Merely Descriptive of Adult Entertainment Services

Posted on March 23, 2009
For our latest addition to the WYHA collection of cases, consider the mark STRIP HOP for "adult entertainment services, namely, live performances by exotic dancers, night clubs and cabarets featuring alcoholic drinks and food." Can you dig it? The Board couldn't...

Finding Circular Shape for Beach Towel to be Functional, Chicago Federal Court Rules Registered Trademark Invalid

Posted on March 20, 2009
The United Stated District Court for the Northern District of Illinois held invalid the product configuration mark shown immediately below, for beach towels, finding the circular shape to be functional. [The mark is the subject of a 20-year old trademark registration (Reg...

Giving Naked Consents Some Weight, TTAB Reverses 2(d) Refusal of "BUHLER & Design"

Posted on March 19, 2009
Can you name two places where naked consents are consequential? Nudist colonies and the TTAB. Applicant Buhler Technologies GmbH trumped a PTO Section 2(d) refusal by submitting naked consents from the owners of the two registrations cited by the Examining Attorney...

Precedential No. 7: TTAB Okays Amended Section 18 Petition for Partial Cancellation, if Amended a Bit More

Posted on March 18, 2009
Petitioner IdeasOne sought to register its mark WELLCORPS INTERNATIONAL for dietary supplements, but was blocked by Respondent's registration of WELLCORP in standard and design form, for "consulting services in the field of healthcare." IdeasOne filed a petition for partial cancellation under Section 18, but was met with a motion to dismiss under FRCP 12(b)(6) for failure to state a claim...

TTAB Finds "KID'S OUTDOORS" & Design Not Confusingly Similar to "OUTDOOR KIDS," Both for Clothing

Posted on March 17, 2009
Petitioner Outdoor Kids, Inc. was tossed off the TTAB teeter-totter when it sought to cancel two registrations for the mark KID'S OUTDOORS & Design (shown below) for clothing and toys [KID'S OUTDOORS disclaimed]. Petitioner relied on its registration for the mark OUTDOOR KIDS for outdoor clothing and sporting goods for children [KIDS disclaimed] in alleging likelihood of confusion and dilution...

Carroll Shelby's Cobra Design Marks Survive Feeble TTAB Challenge

Posted on March 16, 2009
Unique Motors spent more than seven years on the TTAB track, but got nowhere in its oppositions to registration of the product configuration marks shown below, for automobiles. Unique, a maker of replica Cobra vehicles, pleaded lack of acquired distinctiveness, abandonment, genericness, and fraud, but it made a big mistake: Unique failed to submit any admissible evidence during its testimony period...

TTABlog Twin-Bill: Two More "Bad Specimen" Cases To Ponder

Posted on March 13, 2009
Today we have two more "bad specimen" cases that, for better or worse, were taken up on appeal. In the first, Applicant Atlas Media (who beat a bad-specimen rap in January [TTABlogged here]), was hoping to register the mark HOW NOT TO DIE for a television program about longevity...

TTAB Questionably Shows a Second Red Card to "FUTBOLITO": Merely Descriptive for Game Tables, but Confusingly Similar to "MLS FUTBOLITO"?

Posted on March 12, 2009
The Major League Soccer season begins one week from today. We New England Revolution fans face the new season with hope and dread. Four times the Revolution have made it to the MLS Cup, the championship game, and four times they've lost. I'm not sure I can take another one...

Finding "ACURA" and "RL" Too Far Apart on Specimens, TTAB Affirms Refusal of "ACURA RL" for Autos

Posted on March 11, 2009
Applicant Honda's specimens of use for the mark ACURA RL for "automobiles and structural parts therefor" were not in accord with PTO requirements because they "left the impression" of two marks rather than one. And so the Board affirmed the PTO's refusal to register in light of Honda's failure to provide an acceptable specimen of use...

TTABlog Job Posting: Michael Best & Friedrich Seeks TM Associate for Milwaukee Office

Posted on March 11, 2009
Michael Best & Friedrich LLP is seeking a trademark associate with 1-3 years of experience for its Milwaukee office. If interested, please contact the firm directly.Founded in 1848, Michael Best has earned a reputation as a leading law firm in the Midwest...

Precedential No. 6: TTAB Affirms Section 2(e)(5) Functionality Refusal of Shape of Metal Spray Nozzle

Posted on March 10, 2009
Another product configuration "mark" bit the TTAB dust when the Board affirmed the PTO's refusal to register the purported mark shown below (consisting of a "round disk head on a sprayer nozzle") for "metal spray nozzles." The Board found the design to be functional under Section 2(e)(5), and alternatively found that it fails to function as a mark, under Sections 1, 2, and 45...

Precedential No. 5: Board Shows Mercy, Forgives Cancellation Petitioner Who Served Petition One Week after its Electronic Filing

Posted on March 09, 2009
Rule 2.111(a), effective November 1, 2007, requires that a petition for cancellation "include proof of service on the owner of record for the registration." The Equine Touch Foundation Petitioner filed a Petition for Cancellation electronically on October 10, 2008, indicating on the ESTTA form that service had been made on registrant that same day...

Precedential No. 4: TTAB Rules that a Sound Emitted by Goods in Normal Course of Operation Cannot Be Inherently Distinctive

Posted on March 03, 2009