Yours truly, the TTABlogger, has once again reviewed the TTAB's FOIA page (now called the "TTAB Reading Room") in order to estimate the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board in the past calendar year. I counted 273 decisions, of which 240 were affirmances and 33 were reversals. That's an affirmance rate of approximately 87.9%, or a bit less than 9 out of 10. A follow-up question is: how many were WYHAs?
None of the reversals was precedential. The only precedential Section 2(d) decision was the Joel Embiid case, In re Joel Embiid, 2021 USPQ2d 577 (TTAB 2021), affirming a refusal to register TRUST THE PROCESS for shoes.
Set out below is a list of the 33 proposed marks (with application serial numbers) involved in the Section 2(d) reversals. In the vast majority of cases, the differences in the marks or the differences in the goods/services proved to be dispositive. In several cases, the weakness of a particular term was a key factor (ASEPT, RECIPE BOX, FORAGE, KEEP THE FAITH, ASCENT, and MATCH). Prior registrations (under the 13th DuPont factor) impacted the HANA BANCORP and ELDORADO RESORT decisions. And consumer sophistication played a role in several reversals (FLC BANK, JACQUELINE ANNE OCCASIONS, MORE DEVELOPMENT, HERVÉ).
- VALLKREE (79221380)
- ASEPT-AIR (88265476)
- MS. INTERNATIONAL (87820883)
- JACOB FUCHSBERG LAW FIRM (87843998)
- FLC BANK & Design (88134205)
- MALDI BIOTYPER SIRIUS (79258339)
- THE KARTRITE (88337961)
- THE KARTRITE & Design (88338045)
- CHROMAFUSION (87570853)
- JACQUELINE ANNE OCCASIONS (88264864)
- LIVE ON POINT (88380382)
- SHAKTI WARRIOR (88459695)
- PINCH IT! RECIPE BOX (88463841)
- HANA BANCORP & Design (86019580)
- PENTALABEL EKLIPSE (88288761)
- FORAGE KITCHEN (87561681)
- ELDORADO RESORT CASINO RENO (88514634)
- PFANNER STRETCHFLEX (79247130)
- KING'S RANSOM (79261464)
- HIGH FIBE (88536980)
- UT FIDEM KEEP THE FAITH & Design (88592284)
- ZAHRA (88619996)
- MIKEY WRIGHT (79287529)
- MORE DEVELOPMENT (88943364)
- NATURA GOURMET & Design (88951023)
- TOTALLY SEAMLESS SOLUTION (88610652)
- GENESIS VILLAGE & Design (88626467)
- ASCENT FEDERAL CREDIT UNION (88675314)
- ICEE (88683570)
- DEVIL'S PAINT BOX IPA and Design, (88685983)
- HERVÉ (88703545)
- ROOM 2 GROW & Design (88727081)
- MATCH STUDIO (88674888)
Almost all of these reversals found their way into a TTABlog post. You may find a particular post by putting the mark into the search engine box.
How does this compare with past years? Here's a bar chart (prepared by the incomparable Francesca ("Frankie") Householder of Wolf Greenfield), covering the last ten years:
Click on picture for larger, clearer image.
Read comments and post your comment here.
TTABlog comment: Unlike in the last two years year, the month of September was not so bad for appellants. In September 2019, the Board affirmed all 47 Section 2(d) refusals. In 2020, it was 45 out of 46. Last year, there were 38 affirmances and 10 reversals. Since September is the last month of the USPTO's fiscal year, a lot of decisions come down that month.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
