Here is the second half of the TTABlog's "top ten" list of 2015 TTAB decisions. Part 1 may be found here. If you would have selected other cases for the top ten, please say so in the comments.

Frankish Enterprises Ltd., 113 USPQ2d 1964 (TTAB 2015) [precedential] [TTABlogged here]. The Board reversed a refusal to register the mark shown below, comprising a “truck cab body in the design of a fanciful, prehistoric animal,” for “entertainment services, namely performing and competing in motor sports events in the nature of monster truck exhibitions.” The Examining Attorney contended that applicant’s design fails to function as a service mark because monster trucks appear in a wide variety of designs and applicant’s design would not be perceived as a source indicator. The Board first noted that, although product designs cannot be inherently distinctive, product packaging trade dress and trade dress for services can be. The Board found applicant’s proposed mark to be “akin to the packaging of what is being sold.” Under Two Pesos, trade dress for services may be inherently distinctive. Applying the CCPA’s Seabrook test, the Board found the mark to be unique and unusual, and therefore inherently distinctive.

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In re Thor Tech, Inc., 113 USPQ2d 1546 (TTAB 2015) [precedential] [TTABlogged here]. The differences in the goods and their channels of trade and the high level of purchaser care led the Board to conclude that the mark TERRAIN for “recreational vehicles, namely, towable trailers” is not likely to cause confusion with the identical mark registered for “motor land vehicles, namely, trucks.” Thor Tech submitted dozens of third-party registrations for the same or very similar marks, owned by different entities, for vehicles and recreational vehicle trailers, suggesting to the Board that “businesses in these two industries believe that their respective goods are distinct enough that confusion between even identical marks is unlikely. The Board found that this “pattern of registrations” rebutted the two third-party registrations submitted by the Examining Attorney. The Board came to a similar conclusion in Keebler Company v. Associated Biscuits Limited, 207 USPQ 1034, 1038 (TTAB 1980) (“The mutual respect and restraint exhibited toward each other by the owners of the plethora of marks, evidenced by their coexistence on the Register, are akin to the opinion manifested by knowledgeable businessmen ...."). The third-party registrations “suggest that consumers are aware that [the goods] are offered by different companies under the same or similar marks.”

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In re Engine 15 Brewing Co., LLC, S.N. 86038803 (October 29, 2015)[not precedential] [TTABlogged here] and In re Left Nut Brewing Company, Inc., S.N. 85935569 (November 13, 2015) [not precedential] [TTABlogged here]. This pair of “nut” cases may be interesting, but perhaps not very important after the CAFC's decision in In re Tam, since the complete demise of the Section 2(a) immoral or scandalous refusal seems imminent. The Board reversed Section 2(a) refusals, finding the marks NUT SACK DOUBLE BROWN ALE and LEFT NUT BREWING COMPANY for beer, not to be immoral or scandalous. The Board observed that the USPTO may prove that a mark is scandalous under Section 2(a) by showing that the mark is “vulgar” as applied to the identified goods. The mark must be considered in light of contemporary attitudes, from the standpoint of a substantial composite (not necessarily a majority) of the public. The Board has noted for several decades that “contemporary attitudes toward coarse language are more accepting than they had been in earlier eras.” As to the first mark, the Board concluded that “beer drinkers can cope with Applicant’s mark without suffering meaningful offense.” Even when the consumer thinks of body parts or insults, he or she is still likely to see the mark as an attempt at humor. As to the second, in view of the mixed record of vulgar and non-vulgar meanings, the Board ruled that the evidence had failed to establish that LEFT NUT is vulgar: the term has even been use “by senators and web-authors with no evidence of offense or disapproval” and the PTO has registered similarly-suggestive “nut” marks.

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Southwestern Management, Inc. v. Ocinomled, Ltd. and Emeril’s Food of Love Productions, LLC, 115 USPQ2d 1007 (TTAB 2015) [precedential] [TTABlogged here]. Concluding that there would be a likelihood of confusion even in Applicant Southwestern Management’s current territory (upstate New York), the Board dismissed this proceeding involving a concurrent use application for the mark DELMONICO’S for “restaurant services.” Southwestern, the junior user but first to file an application to register, sought a nationwide registration except for the areas of use of the two named Defendants. However, the renown of the Defendants’ restaurants (one in New York City (DELMONICO’S), the heir apparent to the historical restaurant of that name, the other based in New Orleans (DELMONICO) and promoted by Chef Emeril Lagasse) made it likely that confusion would occur even if Applicant’s registration for “restaurant services” were limited to upstate New York. In short, Southwestern failed to carry its burden of proof to show that confusion is not likely. The Board hastened to add that its determination did not, in some respects, take into account actual marketplace conditions, and affected only the issue of registrability and not Southwestern’s right to use the mark. And so the Board denied Southwestern the concurrent use registration requested.

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ProMark Brands Inc. and H.J. Heinz Company v. GFA Brands, Inc., 114 USPQ2d 1232 (TTAB 2015) [precedential] [TTABlogged here]. The Board gave the cold shoulder to this consolidated opposition to registration of the mark SMART BALANCE for frozen entrees and for various snack foods and desserts, finding the mark not likely to cause confusion with the registered mark SMART ONES for various types of frozen foods, including entrees, desserts, ready-to-eat wraps, pizzas, and breakfast foods. The Board concluded that the marks are significantly different, particularly in view of the weakness of the formative “SMART,” the seventeen-year period of conflict-free coexistence of the parties’ marks (but not for frozen foods), and applicant’s corroborating survey evidence and expert testimony. A large portion of the Board’s opinion focused on the expert testimony and survey evidence. Opposers’ likelihood of confusion survey purported to show a 32% likelihood among the 250 respondents surveyed, but the Board found the survey to be fatally flawed, primarily because the pivotal question was close-ended and failed to ask “why?” Applicant’s survey, on the other hand, comported with best practices. It reported a 2% likelihood of confusion among relevant purchasers, based on 410 respondents, and the Board found that this supported a conclusion that confusion is not likely.

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