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. No hints this time. How do you think these came out? [Answers in first comment].
In re Carolyn Anderson Beautiful,
LLC., Serial No. 87851445 (October 21, 2020) [not
precedential] (Opinion by Judge Marc A. Bergsman). [Section 2(d)
refusal to register BEAUTIFUL (Stylized) for
"Hair care products, namely, shampoos; hair conditioners; hair
sprays; styling gels; hair fiber protectants in the form of lotions
and creams; styling foams for hair; root lifters in the nature of
hair creams, foams, gels, and spray liquids; volumizers in the
nature of hair creams, foams, gels, and sprays; hair lotions, gels,
pomades, and waxes in the nature of hair taffies; and hair
waxes," in view of the registered mark
BEAUTIFUL for "perfume, cologne, body creme,
body lotion, body powder, perfumed soap." Applicant contended,
inter alia, that the meaning and commercial impression
engendered by its use of the stylized BEAUTIFUL mark and
Registrant's use of BEAUTIFUL are different because
Registrant's use of BEAUTIFUL captures the sense of smell and
its use of BEAUTIFUL refers to vision.]
In re Yafa Hummus Inc., Serial Nos. 88157691 and 88157695 (October 21, 2020) [non precedential] (Opinion by Judge Karen S. Kuhlke) [Section 2(d) refusal of YAFA HUMMUS SIMPLY MEDITERRANEAN, in standard character and design form (below) for "Restaurant services; Restaurant services featuring Mediterranean cuisine, Greek cuisine, and a fusion of Mediterranean and Greek cuisine; Restaurant and café services; Restaurant and catering services" [HUMMUS, MEDITERRANEAN and SINCE 1951 disclaimed], in view of the registered mark YAFA GRILL & Design for "Restaurant and catering services" [YAFA GRILLE SHAWARMA, FALAFEL, and PITA disclaimed]. Applicant argued that the disclaimed terms are of less significance and the design elements in the marks are sufficient to distinguish them.]
In re Beavertail Products, LLC, Serial No. 88197106 (October 23, 2020) [not precedential] (Opinion by Judge Linda A. Kuczma). [Section 2(d) refusal of the mark DOA DECOYS & Design for "wild game hunting decoys" [DECOYS disclaimed] in view of the registered mark D.O.A. for "fishing lures." Applicant asserted that fishing lures are sold in different departments than are waterfowl decoys, and that the most prominent portions of its mark ," according to Applicant, "focus on the waterfowl, the two heads and the rather large wings extending from the center shield," which is "also is a very prominent portion of the mark." Applicant maintained that the stylistic images of its mark are the most eye-catching aspects of the mark and distinguish it from the cited mark.]
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