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The Ruttler Mills Blog

2016 TTAB Decisions Reaffirm Need for Good Searching in Beginning

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.

New Secretary of Commerce: Wilbur Ross

Posted Tuesday, December 6, 2016 by Jim Ruttler

The anti-patent and anti-IP policies of the last administration appear to be switftly reversing course. Whether you like Obama or not, it is undisputable that the patent system has gotten weaker under his administration. Examination has been more difficult and the PTAB rules have been stacked against patent owners making it easier to invalidate issued patents. Well, that is all about to change with the nomination of pro-business pro-intellectual property nominee Mr. Wilbur Ross for the head of the commerce department, which runs the Patent Office.

Mr. Ross has expressed appreciation for the patent system and its role in spurring economic growth and encouraging innovation. Here in a recent article ( Mr. Ross discusses in an interview how important patents are in the competition for the new World economy, especially with China.

Even more recently, Mr. Ross authored an editorial in the Washington Post discussing how the new administration's policies will go right after intellectual property theft and crack down on this practice to boost U.S. investment and manufacturing. (

Whether you are pro-Trump or not, almost everyone in America would agree that being pro-innovation is good for America. The fact that this has not been the policy of the Patent Office is surprising, but fortunately appears to be short-lived. It should be an exciting few years for innovators and inventors.

11-18-16 Weekly Round-Up of Trademark News

Posted Friday, November 18, 2016 by Daniel Mills

Donald Trump won a battle 10 years in the making. Mr. Trump can celebrate more than just his presidential election win this week; he can celebrate a win in a trademark dispute in China that he has waged for 10 years. In 2006 Mr. Trump applied to register TRUMP in association with real estate agent services for both commercial and residential property. According to an article on, a Chinese squatter named Dong Wei had filed for the name two weeks prior to Mr. Trump. After several refusals, appeals, and denials, Mr. Trump received a final judgment against his claim last year. But, not to be deterred, he filed another application, which was granted provisional approval last week. In the intervening 10 years, it seems that the TRUMP brand has gone from unknown to privileged in China.

Cuba is now a hotbed of US trademark activity. Because of the diplomatic progress of the last two years, many companies are registering their brands in Cuba. According to the Miami Herald, applications in the OCPI, the Cuban equivalent of the USPTO, are over 1,000 so far in 2016. There were 78 in 2014. Registration can be done directly into Cuba or as through the Madrid Protocol. To find our which US companies looking to make their mark in Cuba, read more details here.

11-11-16 Weekly Round-Up of Trademark News

Posted Friday, November 11, 2016 by Daniel Mills

First up this week, one of my favorite toys of all time, the Rubik's Cube has lost trademark protection in the EU for its shape. Many famous products that use a distinct or unique shape have trademark protection. If you understand that the purpose of a trademark is to serve as a source identifier, then it is easy to understand how some products come to be associated with their shape or packaging in a way that elevates that shape to a trademark. Some famous common examples are Perrier bottles and Duracell batteries. Up until this week, the Rubik's Cube held such a trademark in the EU since 1999. A German toymaker challenged the trademark beginning in 2006 and has fought a 10-year battle and finally prevailed. More background can be found here.

ADIDAS Opposes Barcelona's trademark at USPTO. Adidas has challenged FC Barcelona's application for its Seven Stripe design. The opposition is based on confusion over the famous Adidas three stripe design. A copy of the opposition can be found here. In other Adidas/Barcelona news, Barcelona just signed a mega sponsorship deal with Nike the day before the opposition was filed. Coincidence? HA!

In other sporting trademark news, THE Ohio State University is suing a Custom T-Shirt site for infringement over a trademark for the O-H-I-O trademark by which you form these letters using your arms - yes, that is a trademark. Ohio State is a huge school with millions of fans and its apparel is big business, so it is no surprise that they are seeking to protect their rights. More details here.

Patents Still Strong

Posted Monday, November 7, 2016 by Jim Ruttler

It is well known that the Supreme Court has weakened certain aspects of the patent system. One way this has been done is to make most business methods and software implementing those business methods patent ineligible. While many believe this has weakened the patent system and will result in less innovation and weaker protection, I argue that the changes just don't matter and patents remain strong.

My reasoning for this is that the economy and innovation has moved beyond software only inventions. The newest innovations come in the form of physical things, such as new devices and products, and not merely software instructions. Companies are now focused on making physical goods using rapid prototyping, 3D printing, modular circuits and selling those goods using online distribution channels. These types of products and innovations remain squarely within protectable subject matter with patents.

While the changes in patent law weakening protection for certain software inventions would have be significant a decade ago, now there is less focus on products that are limited entirely to software. The Courts are simply a decade behind the economy and the decisions simply don't have an effect on the new areas of innovation involving physical goods.

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