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A half-dozen precedential decisions lead this month's case collection. The Board refused to consider certain statements made in the prosecution history of a cited registration because Applicant had failed to submit the prosecution file into evidence, and in any case the statements were made in a different context. The Board affirmed a Section 2(a) refusal of the mark WHITE JASMINE & Design, finding the word "White" to be deceptive for Applicant's tea. In a rare, contested concurrent use proceeding, it awarded the junior user concurrent use registrations for three marks for hotel and motel services, in the entire United States except for the State of Arizona. The Board affirmed a refusal to register the color black applied to packaging, as a trademark for flowers, finding the mark to be aesthetically functional under Section 2(e)(5). It nixed a stipulation that would have allowed service of Board papers via email while preserving the five extra days for response provided in the case of service by mail. And the Board granted a motion to compel a party to serve an expert written report because the witness was considered to be a "retained" expert. In nonprecedential cases, the Board found CHAMPARTY for "alcoholic beverages except beers" not confusable with the opposer's common law certification mark CHAMPAGNE for sparkling wine. It dismissed an opposition to IN & OUT CAR WASH for car washing services, finding it not likely to cause confusion with or dilute the mark IN-N-OUT BURGERS for restaurant services, and not confusable with IN & OUT for vehicle repair and painting services. The Board reversed a Section 2(e)(2) refusal of KAPALUA for retail store services, finding that the mark primarily designates Applicant's services rather than the geographic location of its resort development. And it affirmed two refusals of GREEN SEAL for adhesive tape, finding it to be deceptive under Section 2(a) and deceptively misdescriptive under Section 2(e)(1).
(F-478) In re Sela Products, LLC, Serial No. 77629624, USPQ 2d_ (TTAB, March 26, 2013) [precedential]. In this appeal from two Section 2(d) refusals to register the mark FORZA for metal mounting brackets for televisions, speakers, and custom audio/video accessories, including cables and wires, Applicant Sela contended that the Board should consider certain statements made in the file history of...