About a dozen years ago, a TTAB judge 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 four recent decisions in appeals from Section 2(d) refusals. How do you think these came out? [Answers in first comment].
In re Michel Mercier, Serial No. 79246019 (November 24, 2020) [not precedential] (Opinion by Judge David Mermelstein). [Section 2(d) refusal of Romy (standard characters) for "Hair brushes, hair combs, hair styling comb and brushes, rotary hair brushes, electrically heated hair brushes" in view of the registered mark ROMY for soaps, perfumery, cosmetics, hair lotions, hair dyes, shampoos, hair conditioners, and hair sprays. Applicant argued that "Registrant's products are only available from their foreign website and are made to be home mixed by the purchaser with a special device."]
In re Hong Kong NETEASE Interactive Entertainment Limited, Serial No. 88256950 (November 24, 2020) [not precedential] (Opinion by Judge Jonathan Hudis). [Section 2(d) refusal of RANGERS OF OBLIVION for downloadable computer game software and for providing online computer games, in view of the registered mark OBLIVION for "computer game programs; providing downloadable computer game programs." Applicant argued that "RANGERS" is the dominant portion of its mark, since it is the first word in the mark.]
In re Win Win Asian Restaurant, LLC, Serial No. 88412518 (November 24, 2020) [not precedential] (Opinion by Judge Peter W. Cataldo). [Section 2(d) refusal of WIN WIN ASIAN KITCHEN (ASIAN KITCHEN disclaimed) for "restaurant services" in view of the registered mark WIN WIN for "take out restaurant services; restaurant services." Applicant contended that the owner of the cited registration "provides as a core business a gas station and convenience store whose 'primary business model is to attract customers who primarily want gasoline,' whereas Applicant's services 'are only restaurant services.'"]
In re Sergey Iotko, Serial No. 87498790 (November 25, 2020) [not precedential] (Opinion by Judge George C. Pologeorgis). [Section 2(d) refusal of the mark HOMY & Design for, inter alia, power cables and mobile telephone accessories, namely, belt clips, in view of the registered mark HOMYA for, inter alia, electric cables and cell phone cases. Applicant argued that the stylization of his mark is sufficient to distinguish the marks because his mark "creates a distinct phonetic and connotative impression from the cited mark."]
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