Yours truly, the TTABlogger, has once again reviewed the TTAB's FOIA page (now called the "TTAB Reading Room") in an attempt to estimate the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board. I counted 286 decisions, of which 260 were affirmances and 26 were reversals. That's an affirmance rate of 90.9%, or a bit more than 9 out of 10. [slightly below last year's rate]. A follow-up question is: how many were WYHAs?
Only one of the reversals was precedential, namely, In re Medline Industries, Inc., involving green medical gloves. [TTABlogged here].
Here is a list of the 26 proposed marks (with application serial numbers) involved in the Section 2(d) reversals:
- ANTARTICA MARATHON (86086458)
- DUA & Design (79250730)
- ZOOM (Stylized) (85740217)
- REMADE INSTITUTE & Des. (87803888)
- DADA CHAPEL (87892342)
- Green for medical gloves (Precedential) (87680078)
- PIANA HYDRO (87776775)
- MONFRÈRE FASHION (88004556)
- SUPER SAVER FAIR ISLE (79236578)
- KRYSTAL KLEAR (88039351)
- MARSHFIELD CONSULTING (88099557)
- HONEYCOMB WAXING STUDIO (87830306)
- NĀO AYURVEDA (88123747)
- LA PETITE BAKERY (87684166)
- NEXBANK (86394529)
- HALF-BAKED BUS & Design (88099422)
- SALTY BULL BREWING (88175921)
- SENSE AND EDIBILITY (88195150)
- SD SUPERDRAFT & Design (88255895)
- PBL WORLD and PBL WORKS (88120254)
- CHRONICLE (87403137)
- PECAN BAYOU ENERGY (88064929)
- ROOSTUP (88186224)
- DRIVEN GOLF (88215365)
- SIMONIZ CERAMICSHIELD (87865135)
- TRIFECTA (88676830)
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, covering the last eight years:
The Board seems to have settled on a 91% affirmance rate, give or take a fraction.
Read comments and post your comment here.
TTABlog comment: The month of September again proved to be grim for applicants. In September 2019, the Board affirmed all 47 Section 2(d) refusals. In 2020, it was 45 out of 46. Of course, September is the last month of the USPTO's fiscal year. Do you think that has anything to do with it?
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