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2016 TTAB Decisions Reaffirm Need for Good Searching in Beginning

Daniel Mills, Trademark Attorney

Posted Thursday, January 12, 2017 by Daniel Mills

My favorite trademark blog The TTAB Blog, created by John L. Welch, has compiled the results of the 2016 TTAB decisions in appeals covering the two most common reasons trademarks are refused - likelihood of confusion and mere descriptiveness.

For section 2(d) likelihood of confusion refusals, Mr. Welch counted 249 refusals. Of those, 228 were affirmed and only 21 were reversed. That is 91.5%.

For Section 2(e)(1) merely descriptive the numbers were similar. 91 refusals of which 82 were affirmed and only 9 reversed. That is 90.1%.

The most significant idea these numbers tell me for my practice and how I counsel my clients is that search is more important than ever when deciding on a new trademark or brand. Search is as much art as it is science, and even the best search is not 100%, but a good search for confusion and a thorough understanding of the descriptiveness standards allow me to help clients avoid these potential refusals. The only sure way to beat a refusal is to not get one in the first place.

This can be a frustrating experience for both attorney and clients, because many times the top choice(s) of clients are often eliminated immediately with a knockout search. The client must go back to the drawing board to come up with another choice, or in some cases dozens of choices. However, frustrating it may be, the time spent up front is a wise investment. The old adage about prevention and cure are true. A little time and money spent at the beginning can save a lot of money and headache down the road.

Ruttler Mills PLLC
One Union Square, 1730, 600 University Street, Seattle, Washington 98101 US
47.6097570-122.3321200
Phone: (206) 838-6400

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