Yours truly, the TTABlogger, has once again taken on the unenviable task of estimating the percentage of Section 2(d) likelihood-of-confusion refusals that were affirmed by the Board in the past calendar year. I counted 200 decisions, of which 185 were affirmances and 15 were reversals. That's an affirmance rate of 92.5%.


Only one of the opinions in the lot was deemed precedential: the RAINCOAST DIP case. There, despite the fact that the DuPont factors pointed in favor of affirmance of the Section 2(d) refusal, the Board overturned the refusal because of a consent agreement between the applicant and the cited registrant, which agreement the Office had pooh-poohed. [TTABlogged here].

Set out below is a list of the 15 marks (with application serial numbers) involved in the Section 2(d) reversals. In the vast majority of cases, the differences in the marks (MACOMB LAW GROUP, ELEPHANT LEARNING MATH ACADEMY, EVOLVED LIFE) or the differences in the goods/services (STREAMLINE BOATS, MBBM, ACRON, EPIGENE, FINALE) proved to be dispositive. In several cases, the weakness of a particular term (typically, a "crowded field") was a key factor (CLOVER CLUB, ELEPHANT LEARNING MATH ACADEMY, EVOLVED LIFE, MOXIE SCRUBS, CUSHION COMPFORT, GUJI MANE). The applicant's prior registrations (under the 13th DuPont factor) were determinative in the GAIA KIDS case. And consumer sophistication played a role in the EPIGENE decision.

  • TRITAN (79272512)
  • RAINCOAST DIP (88758625)
  • MACOMB LAW GROUP (88789548)
  • CLOVER CLUB (88425357)
  • STREAMLINE BOATS (88621502)
  • MBBM (88877168)
  • ACRON (79301495)
  • EVOLVED LIFE (90042595)
  • GAIA KIDS (90052133)
  • MOXIE SCRUBS (90100833)
  • EPIGENET (90269018)
  • CUSHION COMPFORT (88787993)
  • GUJI MANE (90109203)
  • FINALE (88842118)

Nearly 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 Francesca ("Frankie") Householder of Wolf Greenfield), covering the last eleven years:


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