A TTAB judge once said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three recent decisions in appeals from Section 2(d) refusals. How do you think these came out? [Answers in first comment].
In re Simoniz USA, Inc, Serial No. 87865135 (November 3, 2020) [not precedential] (Opinion by Judge Christopher Larkin). [Section 2(d) refusal of SIMONIZ CERAMICSHIELD for "Paint sealant for exterior surfaces of vehicle" in view of the registered mark PLATINUM CERAMIC SHIELD for ""Clear coating protectant containing ceramic nanoparticles for use on vehicles" [CERAMIC disclaimed]. Applicant argued that "the common element of the marks, i.e., 'CERAMIC SHIELD,' is weak because it is descriptive of the named goods, thus, it is unlikely that consumers will be confused, as the overall combinations have no other commonality."]
In re Sérgio Tsugumiti Kobayashi, Serial No. 88073552 (November 3, 2020) [not precedential] (Opinion by Judge Mark Lebow).). [Section 2(d) refusal of the mark shown below for "Drinking flasks; Drinking vessels; Flasks; Insulated containers for food or beverage for domestic use; insulated flasks; insulated vacuum flasks; Vacuum flasks," in view of the registered marks DONOTDISTURB for "blank note cards; bookmarks; appointment books; announcement cards; business cards; blank cards; greeting cards; note cards; all occasion cards; cards bearing universal greetings; Christmas cards; gift cards; postcards, namely, blank, partially printed and picture post cards; printed paper signs" and the mark DO NOT DISTURB for "Capri pants; Leggings; Lounge pants; Loungewear; Nightgowns; Pajamas; Tank tops; Tops as clothing." Applicant argued that DND is the dominant element in his mark, and that the fact that the goods may be found in the same store does not establish their relatedness.]
In re Sundown Sounds Cruise, LLC, Serial No. 88159692 (November 3, 2020) [not precedential] Opinion by Judge David K. Heasley) [Section 2(d) refusal of SUNDOWN SOUNDS CRUISE for "entertainment services, namely, live musical entertainment performances held on yachts or cruise ships" [SOUNDS CRUISE disclaimed], in view of the registered mark SUNDOWN MUSIC FESTIVAL for "entertainment services in the nature of live musical performances; entertainment services in the nature of a live music festival; entertainment, namely, live music concerts" [MUSIC FESTIVAL disclaimed]. Applicant asserted that its primary business model involves single evening cruises on a yacht with musical entertainment, whereas the registrant uses its mark for terrestrial several-day music festivals.]
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