The Top Ten TTAB Decisions Of 2018 (Part II)

This is the second of two posts; the first five selections were posted here. Additional commentary on each case may be found at the linked TTABlog posting. The cases are not necessarily listed in order of importance (whatever that means).

Curtin v. United Trademark Holdings, Inc., Opposition No. 91241083 (December 28, 2018) [not precedential]. [TTABlogged here]. In a controversial nonprecedential ruling, the Board denied the Rule 12(b)(6) motion of Applicant United Trademark Holdings to dismiss this opposition to registration of the mark RAPUNZEL for dolls and toy figures. Opposer Rebecca Curtin, a professor at Suffolk University Law School in Boston, alleged that United's mark fails to function as a trademark under Sections 1, 2, and 45 of the Trademark Act on the grounds that it is purely informational and highly descriptive, if not generic, of the goods. United asserted that Professor Curtin lacked standing because she is not a competitor and "has not used the mark in connection with the manufacture or sale of dolls." Professor Curtin maintained that, as a consumer of dolls, "she has purchased and continues to purchase said goods, and that registration of the applied-for mark by Applicant would constrain the marketplace of such goods sold under the name 'Rapunzel,' raise prices of 'Rapunzel' dolls and toy figures, and deny consumers, such as herself, the ability to purchase 'Rapunzel' dolls offered by other manufacturers." The Board deemed these allegations sufficient to establish that she has a direct and personal interest in the outcome of the proceeding, meeting the "liberal threshold" established in Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999). The Board observed that "[c]onsumers, like competitors, may have a real interest in keeping merely descriptive or generic words in the public domain."

In re Peace Love World Live, LLC, 127 USPQ2d 1400 (TTAB 2018) [precedential] (Opinion by Judge Marc A. Bergsman). [TTABlogged here]. The Board showed no ♥ for this applicant, affirming a refusal to register the mark I LOVE YOU, in standard character form, for bracelets, finding that phrase is merely ornamental and therefore fails to function as a trademark. The crucial question, of course, was whether the applied-for mark would be perceived as a source indicator. In assessing a failure-to-function refusal, and particularly whether a mark is merely ornamental, the Board may consider whether the mark is a common...