We’re now starting to index Letter of Protest decisions — the “Letter of Protest Memorandum” responses. These are classified as “Administrative Response (ADR)” as a “Document Type,” under “Office Action Criteria” in manual Search. Occasionally, a Letter of Protest itself makes it into the file for some reason — these are flagged as “Letter of Protest” or “LOP.”
This blog post takes an initial look at some of the more interesting trends that we noticed from some initial research.
A. The Vast Majority are 2(d)-related.
Unsurprisingly, most Letters of Protest decisions (and thus most Letters of Protest) are attempts to keep third-party applications for arguably similar marks. These accounted for 95%+ of the currently-flagged Protest-related content. Of those that had ADR or LOP flags, only about 12% made it through to registration, suggesting that Letters of Protest are extremely effective tools in proactively protecting clients’ trademarks.
B. The Red Cross is Super Active
The Red Cross seems to be filing a bunch of Letters of Protest relating to use of the cross or “plus” designs.
Sometimes, they just point out that the design element might be a “Swiss flag,” e.g. a black and white logo for healthcare cost tracking and insurance apps (abandoned) and a mark for IMMUNITYAID (with the white cross in the red “D”) for dietary supplements (registered; no refusal issued).
In others, they more expressly make a 2(a) claim based on the Red Cross mark. These are often but not always medical related, e.g. compare a G+ mark for surgical equipment (published for opposition) and POWER PLUS for motor oil (still pending, 2(d) refusal unrelated to the Red Cross). Sometimes these do result in 2(d) refusals, like a dove+red cross design for healthcare services (abandoned), or 2(a) refusals, like THRIVE HYDRATION & design (cross in the “t”) for vitamin injection services.
C. Specimen Protests Haven’t Been Especially Common
While most Letters of Protest related to 2(d) refusals, there were a few specimen ones! A number resulted in digitally-altered image refusals, and applications so refused usually went abandoned. Not always, though; some applicants just swapped in a substitute specimen and made it through to registration.
We’ll pay attention to these as the data pool expands. In the meantime, enjoy the new research opportunities!
I suspect that the specimen protests are low because you have to provide the original image as evidence. It’s easy to eyeball a fake specimen but harder to prove it if they haven’t altered an online image. For example, the applicant may have just used a label maker and added the mark to an existing product. In that case the potential protestor would probably decide not to file the LOP. Not that I’ve been in that exact situation before….
Absolutely! I don’t envy the PTO having to make these decisions, or third parties trying to track down problems.