Precedential No. 8: TTAB Strikes "Trademark Bullying" Affirmative Defense in DOOR DABZ Opposition

Trademark bullies breathed a sigh of relief when, in this opposition to registration of the mark shown below for delivery of medical cannabis via car service, the Board rejected Applicant Greenerside's affirmative defense of unclean hands. Opposer DoorDash alleged likelihood of confusion with eight registered DOORDASH marks for various goods and services, including food delivery. Greenerside asserted that DoorDash has misused its trademarks in a "longstanding and habitual practice of trademark bullying" by opposing a "significant number of applications" on "dubious, weak or exaggerated" grounds. The Board granted DoorDash's motion to strike that defense. DoorDash, Inc. v. Greenerside Holdings, LLC, Opposition No. 91285160 (May 23, 2024) [precedential].

FRCP 12(f)(2), in pertinent part, allows the Board to strike from a pleadings "any insufficient or impermissible defense." The Board pointed out that "[a]n unclean hands defense must be supported by specific allegations of misconduct by a plaintiff that, if proved, would prevent the plaintiff from prevailing on its claim." Of course, the misconduct must be related to plaintiff's claim.

The Trademark Act does not refer to “trademark bullying” explicitly or even implicitly. Rather, it provides for a trademark owner to protect its mark from confusing uses that may infringe upon an owner’s rights through court litigation, and for parties who believe they would be damaged by the registration of a mark on the Principal Register to oppose or petition to cancel such registration before the Board.

Courts have awarded sanctions in trademark cases as a result of "over-aggressive trademark enforcement" accompanied by no reasonable basis for recovery. Greenerside argued essentially that DoorDash's Section 2(d) claims "overreach" and therefore constituted unclean hands.

The Board has previously considered assertions of "unclean hands" based on "overzealous enforcement" but found that this defense "does not apply to a registrant "seek[ing] to protect its rights in its registered marks, and preclud[ing] the registration of what it believes to be a confusingly similar mark."

Here, the Board found that DoorDash is "merely exercising its right to protect its marks." The Board observed:

A defense, as with any pleading, must contain sufficient factual matter to give rise to a particular defense. *** There must be more than threadbare recitals supported by conclusory statements. *** Applicant’s mere characterization of Opposer’s prior opposition activity as "bullying," or assertion of "dubious, weak or exaggerated" claims, does not constitute a sufficient allegation of facts to support an unclean hands defense.

And so, the Board granted the motion to strike and, "as the allegations do not support the pleaded affirmative defense," denied Greenerside the opportunity to re-plead.

Read comments and post your comment here.

TTABlogger comment: The reason for denying Greenerside the right to re-plead seems strange to me. I can see the Board saying that Greenerside tried twice and that's enough. But saying that its allegations fell short seems like a reason to consider the possibility of re-pleading.

Text Copyright John L. Welch 2024.

TTAB Posts June 2024 Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled four oral hearings for the month of June 2024. The hearings will be held virtually, except for the second one, which will be held in-person at the USPTO's Madison East Building in Alexandria, Virginia. Briefs and other papers for each case may be found at TTABVUE via the links provided.

June 12, 2024 - 10 AM: Sung Hwan E&B Co. Ltd. d/b/a SHEnB Co. Ltd. v. Aesthetics Biomedical, Inc., Cancellation No. 92074719 [Petition for cancellation of a registration for VIVACE for "radio frequency microneedling device" on the grounds of non-ownership, fraud, and likelihood of confusion with the common law marks VIVACE, VIVACE EXPERIENCE, VIVACE ULTRA, and VIVACE NATIONAL MICRONEEDLING DAY for the identical goods.]

June 13, 2024 - 2 PM (In person at the USPTO): Garan Services Corp. v. Jesus Villa, Cancellation No. 92074777 [Petition for cancellation of a registration for the mark HALFANIMAL for "Beanies; Hats; Pants; Shorts; Sweat pants; Sweat shirts; Sweat shorts; Sweat suits; T-shirts; Wind resistant jackets" on the grounds of abandonment and false suggestion of a connection with Petitioner Garan under Section 14(3).]

June 25, 2024 - 2 PM: In re Keto Chow LLC, Serial No. 97073305 [Section 2(e)(1) refusal to register KETO CHOW for "Meal replacement shakes for weight loss purposes designed to promote and maintain ketosis; dietary and nutritional supplements used for weight loss designed to promote and maintain ketosis; weight loss powders for nutritional purposes designed to promote and maintain ketosis" on the ground of mere descriptiveness and lack of acquired distinctiveness.]

June 26, 2024 - 1 PM: Jonna Markets, LLC v. Makini Howell, Opposition No. 91249325 [Section 2(d) opposition to PLUM for "Vegan packaged prepared food, namely, sauces, sandwiches, sandwich wraps, all not containing plums" and for "Restaurants, namely, cafes, bistros, fast food, casual dining and providing food and drink via a mobile truck," on the ground of likelihood of confusion with the registered mark PLUM MARKET for "retail grocery, delicatessen, and coffee shop services" [MARKET disclaimed].]

Read comments and post your comment here.

TTABlog comment:  Any predictions?

Text Copyright John L. Welch 2024.

TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?

So far this year, the Board has affirmed about 90% of the Section 2(e)(1) mere descriptiveness refusals reviewed on appeal. Here are three more. How do you think they came out? [Results in first comment].

In re Track Draft, LLC, Serial No. 90704707 (May 28, 2024) [not precedential] (Opinion by Judge Mark Lebow). [Mere descriptiveness refusal of TRACK DRAFT for, inter alia, online gaming services in the nature of motorsports, automobile racing, and motorcycle racing gambling,]

In re Theia Group, Incorporated, Serial No. 87896620 (May 23, 2024) [not precedential] (Opinion by Judge Cynthia C. Lynch) [Refusal to register DECISION-GRADE for “Spectral analysis of data via satellites utilizing visible and non-visible electromagnetic wavelengths for use in monitoring and identifying and measuring activity, objects and/or living beings, taking place on, above and/or below the earth’s surface, especially where the quality of the analytics are sufficient to replace human decision making for use in the commercial, agricultural, geologic, energy and industrial fields."]

In re Galaxy Gaming, Inc., Serial No. 97065333 (May 15, 2024) [not precedential] (Opinion by Judge Martha B. Allard) [Mere descriptiveness refusal of the proposed mark 3 CARD PICK'EM (Stylized), shown below, for "Computer hardware and computer display screen and monitor for game results," and for "Gaming tables for gambling; wagering games, namely, gaming tables with gaming table layouts; gaming tables for playing wagering games with gaming table layouts for use on a gaming table in a casino; card games; casino card games."]

Read comments and post your comment here.

TTABlog comment: How did you do? See any WYHA?s

Text Copyright John L. Welch 2024.

TTAB Issues Correction of CINNAMON DONUT STOUT Opinion Regarding Genericness Burden of Proof

The Board has issued a corrected opinion (here) in the CINNAMON DONUT STOUT appeal because it misstated the USPTO's burden of proof for establishing genericness. As pointed out by the TTABlogger and Michael Hall, the original opinion (TTABlogged here) stated that "clear and convincing" evidence was required. Not so, according to last year's precedential Uman Diagnostics ruling, which held that the USPTO's burden is a preponderance of the evidence.

Read comments and post your comment here.

TTABlogger comment: Michael Hall questioned that aspect of the Uman decision in an article TTABlogged here.

Text Copyright John L. Welch 2024.

"ASSHOLES LIVE FOREVER" Fails-to-Function as a Service Mark for Online Retail Store Services, Says TTAB

Last year, the Board affirmed a refusal to register the proposed mark ASSHOLES LIVE FOREVER, in the stylized form shown below, for various goods in 14 classes, finding that the phrase fails to function as a trademark. [TTABlogged here]. The same applicant met the same fate in this attempt to register that same phrase for "Online retail store services featuring clothing, jewelry, bags, gifts, home goods, hats, blankets, mugs, belts, branded gift bags, floor mats, keychains, novelty toys for playing jokes, and pillows." In a 41-page opinion, the Board concluded that the phrase is used to convey a commonplace, informational message that consumers would not perceive as a source indicator. In re Kirill’s Big Brain, LLC, Serial No. 97359799 (May 22, 2024) [not precedential] (Opinion by Judge Wendy B. Cohen).

The Board observed that "[t]he critical inquiry in determining whether a proposed mark functions as a trademark is how the relevant public perceives the term sought to be registered." Univ. of Ky., 2021 WL 839189, at *13. "Where the evidence suggests that the ordinary consumer would take the words at their ordinary meaning rather than read into them some special meaning distinguishing the goods and services from similar goods and services of others, then the words fail to function as a mark." In re Ocean Tech., Inc., Ser. No. 87405211, 2019 WL 6245131, at *4 (TTAB 2019) (internal punctuation omitted).

The Examining Attorney argued that ASSHOLES LIVE FOREVER "is commonly used as a rallying cry of sorts for those who self-describe as or otherwise embrace the 'asshole' moniker. The phrase is one of celebration and means that they will be noticed and remembered and that they or those like them will always exist." In support of that argument, the Examining Attorney submitted examples of use of the phrase ASSHOLES LIVE FOREVER by third-parties, including on clothing, water bottles, mugs, bracelets, and wall hangings [??? - ed.], and as a blog post title and a song title.

The applicant argued that the USPTO's evidence was too limited, but the Board pointed out that "the Examining Attorney need only establish a reasonable predicate that the phrase fails to function as a mark; the Examining Attorney is not required 'to prove to a moral certainty' that the phrase would not be perceived as a source-indicator. Brunetti, 2022 WL 3644733, at *19."

Applicant feebly asserted that the evidence showed use of ASSHOLES LIVE FOREVER "in an ornamental fashion, but that was the Examining Attorney's point: the phrase "would be perceived as a common message whether described as a parody, meme or lament; it does not indicate the source of Applicant’s services. A consumer is likely to buy the goods or services that prominently display the phrase because of the message conveyed. Eagle Crest, 2010 WL 3441109, at *3."

Applicant also argued that the examples provided by the Examining Attorney are not for online retail store services but are instead ornamental uses on clothing and other goods. The Board, however, observed that "[t]he test is not whether the proposed mark is used on goods or in connection with services but whether, upon seeing the proposed mark, the consumer will view it as conveying a message or as a source-indicator."

Applicant made a number of additional arguments in an attempt to overcome the Office's evidfence, pointing to third-party references to ASSHOLES LIVE FOREVER as a brand and to purported copying by infringers. The Board rejected the copying argument and was unmoved by the third-party references: "even though some of the evidence also refers to ASSHOLES LIVE FOREVER as a brand, this evidence indicates general consumer recognition of the phrase for the message conveyed. Simply calling ASSHOLES LIVE FOREVER a brand cannot transform an otherwise unregistrable designation into a registrable mark."

The entirety of the evidence of record indicates that there are several third-party uses of the phrase on various goods that do not appear to be associated with Applicant, thereby suggesting that the broader class of consumers would perceive only the common meaning of the phrase. See Mayweather, 2020 WL 6689736, at *3. Thus, “even if there were evidence that some consumers associated the phrase with Applicant, that alone would not entitle Applicant to appropriate for itself exclusive use of an otherwise common informational phrase and thereby attempt to prevent competitors or others from using it….” Wal-Mart Stores, 2019 WL 193990, at *12.

Applicant further argued that some of the USPTO's evidence post-dated its first use and thus represented infringing products, but it cited no authority for the proposition that the Office’s evidence must be disregarded because it post-dates Applicant’s first use. "The Board’s failure-to-function cases do not impose such a requirement, and they have invariably considered evidence of third-party use that post-dated use or the filing dates of the subject applications."

Read comments and post your comment here.

TTABlogger comment: The Board distinguished the "100% THAT BITCH" case, where "much of the evidence of third-party use specifically [sought] to associate the goods … with Lizzo." Here, the third-party evidence made no reference to the applicant.

Text Copyright John L. Welch 2024.

CAFC Affirms TTAB Dismissal of Consolidated Cancellations Due to Lack of Entitlement to a Statutory Cause of Action

The CAFC affirmed the Board's dismissal of two petitions for cancellation on the ground of lack of entitlement to a statutory cause of action under Section 1064 of the Trademark Act. The appellant, a limited partner of the Paul Hobbs Winery, challenged registrations for the marks ALVAREDOS-HOBBS and HILLICK AND HOBBS on two grounds (likelihood of confusion and fraud) but it failed to satisfy the Lexmark test because appellant lacked a direct commercial interest in the PAUL HOBBS mark being asserted, and because any injury appellant might suffer was too remote. Luca McDermott Catena Trust v. Fructuoso-Hobbs SL, Appeal No. 2023-1383 (Fed. Cir. May 23, 2024) [Precedential].

The CAFC first looked to whether the appellant had Article III standing ("constitutional standing"), and then turned to the question of appellant's entitlement to a statutory cause of action.

Article III Standing

To establish constitutional standing, Appellant “must show (i) that [it] suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by [Appellees]; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

The court had "little doubt" that the appellant's alleged injury - the diminishment of the value of its investment in Hobbs Winery - satisfied the "injury-in-fact" requirement. "Such a monetary injury is undoubtedly 'concrete.' Indeed, the Supreme Court has long recognized that 'traditional tangible harms,' such as monetary harms, 'readily qualify as concrete injuries under Article III.'" TransUnion LLC, 594 U.S. at 425; see Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016). Furthermore, the appellant's injury is "particularized" because it affects the appellant personally and individually, and the injury is "actual or imminent," not just "conjectural or hypothetical."

The causation requirement was satisfied because "[t]he allegedly unlawful registrations of Appellees’ marks cause a diminishment of value in Appellant’s Hobbs Winery ownership interest." And "there can be no doubt that Appellant’s injury would be redressed by a favorable decision."

The CAFC was therefore satisfied that the appellant met its burden as to Article III standing.

Entitlement to a Statutory Cause of Action

The question, then, was "whether Appellant falls within the class of plaintiffs who Congress has authorized to seek cancellation of Appellees' trademark registrations under 15 U.S.C. § 1064." The Board concluded that it did not. The CAFC agreed.

[W]e apply the analytical framework set forth by the Supreme Court in Lexmark, which provides two requirements to establish an entitlement to a statutory cause of action. 572 U.S. at 129; see Corcamore, 978 F.3d at 1305 (holding that Lexmark controls the statutory cause of action analysis under § 1064). First, Appellant must show that its interests fall within the “zone of interests” that Congress intended to protect in enacting the relevant statute. Lexmark, 572 U.S. at 129. Second, Appellant must show that its injuries are proximately caused by Appellees’ alleged violation of that statute. Id. at 132. In other words, Appellant must establish that its harm is not “too remote” from Appellees’ alleged unlawful conduct. Id. at 133.

The Lexmark analysis has "no meaningful, substantial difference" from the test traditionally applied by the CAFC: whether a trademark challenger has demonstrated "a real interest in cancelling the [registered trademarks at issue] and a reasonable belief that the [registered trademarks] are causing it damage." Each of the tests is meant to exclude only the claims of "mere intermeddlers."

A petition can satisfy the "zone of interests" requirement by showing that it has a "legitimate commercial interest" vis-a-vis the challenged mark. The court concluded that, because the only basis for the appellant's challenge is its minority interest in the owner of the mark, and not its own commercial activity, "it is not within the zone of interests entitled to seek cancellation of those marks under Section 1064."

That conclusion is supported by the Supreme Court’s guidance that Congress’s intent in enacting the Lanham Act was to provide a cause of action to persons engaged in commerce, not consumers, as well as our case law proscribing "mere intermeddlers" from seeking cancellation of challenged marks. * * * [N.B.: registrations are cancelled, not marks - ed.]. While Appellant, who, after all, owns up to 21.6% of Hobbs Winery, is not properly called an “intermeddler,” it indeed lacks the direct commercial interest in the registration at issue that the trademark laws contemplate as providing a basis for a cause of action

Finally, the CAFC observed that, even if the appellant's claims fell within the zone of interests of Section 1064, it could not satisfy the proximate causation requirement. The applicant's injury is derivative: absent injury to Hobbs Winery's mark, there can be no injury to appellant. In sum, the appellant's injury, like that of the landlord or the electric company mentioned in Lexmark, is too remote to provide the appellant with a cause of action under Section 1064.

Read comments and post your comment here.

TTABlogger comment: This decision does not bode well for Professor Curtin's appeal of the Board's RAPUNZEL decision. (TTABlogged here). BTW: Why didn't the winery appear as the petitioner here?

Text Copyright John L. Welch 2024.

The Top Ten Losing TTAB Arguments: 2001 Edition

In 2001, I first created my list of "The Top Ten Losing TTAB Arguments" in an article published in Allen's Trademark Digest. (pdf here). The article provided my commentary on the top ten losers, with exemplary cases. The 2024 list is slightly different. I do not claim that all of these arguments are automatic losers, but as to the 2024 list specifically, I think five of them are always losers (1, 2, 5, 7, and 10), three are nearly always losers (4, 8, and 9), and two are usually losers (3 and 6).

Read comments and post your comment here.

Text Copyright John L. Welch 2024.

TTABlog Test: Which of These Three Recent 2(d) Refusals Was/Were Reversed?

So far this year, the rate of affirmance for Section 2(d) refusals is just over 90%. The annual refusal rate typically hovers around 90%. Here are three recent TTAB decisions, at least one of which was reversed. How do you think they came out? Answers in first comment.

In re Rise Above, Serial No. 88735273 (May 13, 2024) [not precedential] (Opinion by Judge Peter W. Cataldo) [Section 2(d) refusal of the mark shown below, for various charitable services for promoting exercise, healthy eating, fitness and exercise training, and character enrichment to native youth, in view of the registered mark RISE ABOVE, for services including charitable services in the field of promoting exercise, healthy eating, fitness and exercise training, and character enrichment.]

In re Ayres Group, Serial No. 97246717 (May 13, 2024) [not precedential] (Opinion by Judge Christen M. English) [Section 2(d) refusal to register the mark shown below left, for "wine; red wine; rose wine; white wine all of the foregoing being marketed and sold at an associated hotel and related website," in view of the registered marks shown below right, for "wines."]

In re Pegasus Protein LLC, Serial No. 88616931 (May 21, 2024) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of PEGASUS PROTEIN for "Powdered nutritional supplement drink mix containing protein powder" [PROTEIN disclaimed] in view of the registered mark PEGASUS for "Topical preparations, namely, sprays, gels and creams for enhancing sexual arousal; sexual enhancement supplements."]

Read comments and post your comment here.

TTABlog comment: See any WYHA?s

Text Copyright John L. Welch 2024.

The Last Two Slides from My INTA Presentation

Thank you for attending the INTA presentation yesterday. Because of my own technical incompetence, the last two slides in my presentation yesterday were given short shrift. A few people said they would like to see them, so here they are. If you click on each one, you will get a larger picture.

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TTABlogger comment: See you next year, I hope.

Text Copyright John L. Welch 2024.

Ted Davis: "Annual Review of U.S. Federal and State Case Law and T.T.A.B. Developments"

Thank you, Ted Davis, for permitting me to post a link (here) to your article, "Recent Developments in United States Trademark and Unfair Competition Law." This article is a companion to the Ted's presentation at the 2024 Annual Meeting of INTA Atlanta."

Read comments and post your comment here.

"DREAM DECIDE DO" Fails to Function as a Trademark for Stationery and Printed Works, Says TTAB

The phrase DREAM DECIDE DO may sound like it came from a Taylor Swift song, but it wasn't a hit with the TTAB. The Board affirmed a refusal to register the proposed mark, finding that it fails to function as a source indicator for "Stationery; Blank notepads; Blank paper notebooks; Printed day planners; Printed desktop planners; Printed motivational cards; A series of printed books, printed articles, printed handouts and printed worksheets in the field of motivation and personal development." In re Financial Success Media, LLC, Serial No. 97087569 (May 10, 2024) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Board's assessment of whether the proposed mark functions as a trademark is based on whether the relevant public, i.e., purchasers or potential purchasers of the identified goods, would perceive DREAM DECIDE DO as a source identifier for those goods. "We look to the specimens and other evidence of record showing how the designation is actually used in the marketplace."

Examining Attorney Kim Teresa Moninghoff submitted marketplace evidence showing use of the phrase "Dream Decide Do” by third parties in connection with clothing, podcasts, career events, book teasers, and planners, and in blogposts and other social media. She argued that DREAM DECIDE DO is widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment, and is “commonly used as a motivational or coaching tool to convey the steps to achieving one’s dreams.”

Applicant pointed to the lack of evidence of use of DREAM DECIDE DO for planners or its other 16 goods. The Board, however, observed that the evidence showed individuals and businesses using this slogan in a non-trademark manner. "In prior cases, we have found evidence of usage by various businesses, or on other products and services, not limited to any particular sector, or particular goods, to be probative of informational use."

Moreover, "ornamental use of phrases on planners by third-parties, or variants of the designation, while not determinative, is relevant to the determination of whether DREAM DECIDE DO functions as a mark."

Applicant also criticized the amount of evidence as insufficient to establish widespread use. The Board was unmoved. "Although the volume of evidence in this case is not as large as in other Board cases, there is no specific rule as to the exact amount or type of evidence necessary to prove informational use."

Concluding that "[t]his common use by third parties of DREAM DECIDE DO and its variants, renders it less likely that the public would perceive the phrase as identifying a single commercial source," the Board affirmed the refusal to register."

Read comments and post your comment here.

TTABlogger comment: Do you think DREAM DECIDE DO could serve as a source indicator for an ice cream parlor? An ice cream flavor? The BLACK CARD case suggests that whether a mark fails to funciton depends on the goods/services involved.

Text Copyright John L. Welch 2024.

TTAB Finds CINNAMON DONUT STOUT to be Generic for . . . Guess What?

I don't drink a lot of beer - I want to keep my weigh down. But I don't think I would ever want a glass of CINNAMON DONUT STOUT. The Board was not enamored with the idea, either. It affirmed a refusal to register, on the Supplemental Register, the term CINNAMON DONUT STOUT for "beer" [STOUT disclaimed], finding it to be generic for the goods under Sections 23(c) and 45. Examining Attorney Raul Cordova "proffered clear and convincing evidence that beer is offered in a variety of flavors that describe the central, or key, aspect of the beer." In re Blake Farms Hard Apple Cider, LLC, Serial No. 90504414 (May 16, 2024) [not precedential] (Opinion by Judge Melanye K. Johnson).

Not surprisingly, the Board found the genus of the goods to be "beer" and the relevant purchasers to be "ordinary adult members of the public who are beer drinkers." As to the meaning of the proposed mark, applicant's specimen of use states: "Made with Blake’s Cider Mill famous donuts & locally sourced cold brew coffee, this stout has notes of rich chocolate, vanilla and cinnamon."

The Examining Attorney submitted third-party website evidence that included the terms "cinnamon donut" in the name of a beer. Based on that evidence, the Board found that "flavored beer is a type of beer within the genus “beer” defined by Applicant’s identification of goods."

When a term “directly names the most important or central aspect or purpose of [an] applicant’s goods” and would be understood by the relevant consumers as referring to a category of those goods, the term is generic. In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998) [ATTIC for sprinklers]. *** Here, flavor, including flavors resulting in beer tasting like another food or beverage, is an important and central aspect for beer. Specifically, the flavor “cinnamon donut” refers to a key, or central, aspect of Applicant’s Goods as well as the goods of several third parties.

The Board further noted that an adjective may serve as a generic term. See Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341, 1366 (TTAB 2013) [FOOTLONG for sandwiches]. "The primary significance of 'cinnamon donut' is as a generic adjective for cinnamon donut beer, and the fact that CINNAMON DONUT STOUT is not the common name of one type of beer does not mean that the term is registrable."

Here, the term “cinnamon donut” immediately describes the most important or central aspect of Applicant’s Goods — the “cinnamon donut” flavor. Thus, “cinnamon donut” is a term that identifies a category of beer.

The Board concluded that the Examining Attorney met the USPTO's burden of proving genericness by "clear and convincing evidence." In re Cordua Rests., 118 USPQ2d at 1635. And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: WYHA? Perhaps you would prefer a Blueberry Muffin? Note that last year, in Uman Diagnostics, a precedential decision, the Board ruled that the standard for proof of genericness is a "preponderance of the evidence." See Michael Hall's article here. Here the Board said the standard is "clear and convincing." What gives?

Text Copyright John L. Welch 2024.