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In this first of four precedential rulings this month, the Board dismissed an opposition to registration of IPAD for computer services because the opposer failed to prove prior protectable rights in that inherently descriptive term. The Board affirmed a genericness refusal of MECHANICALLY FLOOR-MALTED for "malt for brewing and distilling" and "processing of agricultural grain," pointing out that adjectives may be just as generic as nouns. In another Section 2(d) opposition, the Board rejected opposer's internet web pages as proof of priority because the factual statements made therein were hearsay uncorroborated by testimony. And in the fourth precedential decision, the Board denied motions to strike an expert report and to preclude the expert's testimony, noting that the movant may request additional time to take discovery of the expert. In non-precedential rulings, the Board reversed a refusal to register CREATE PAINT in view of the registered mark PAINT 'N CREATE & design, both for paints. It affirmed a mere descriptiveness refusal of ALL IN ONE for wall-mounted hand dryers in light of evidence that such dryers frequently combine a number of functions. The Board affirmed a refusal to register a ribbon-shaped design for livestock cleaning preparations on the ground that the proposed mark is a mere background element that does not create a separate commercial impression. In another failure-to-function case, the Board sustained an opposition to registration of REMEMBER THIS NAME due to lack of evidence that the slogan serves as a source indicator. It sustained a Section 2(d) opposition to registration of HONEY PIG for restaurant services, finding applicant's reliance on its prior registration of a similar mark, under the 13th du Pont factor, insufficient to overcome the other confusion factors. And finally, the Board granted a motion for summary judgment with regard to two product configurations for a "heat fusible link for use in fire protection" on the ground of functionality under Section 2(e)(5).
In a court-related matter, the TTAB, on remand from the CAFC, has vacated its precedential March 31, 2017, decision in In re Shabby Chic Brands LLC, 122 USPQ2d 1139 (TTAB 2017), and has returned the case to the examining attorney for consideration of certain additional evidence. The additional evidence concerns three matters: the activities of the Prince of Wales, his...