Trademark Review - Volume 3 | Issue 5 - May 2013

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In This Issue:

• In-N-Out Loses its Opposition Against In & Out Car Wash

• Did Tiffany Catch Costco Red-Handed or Is “TIFFANY” Generic for Ring Settings?

• RED GOLD® Is Revived on Appeal After Being Declared Generic

- Excerpt from In-N-Out Loses its Opposition Against In & Out Car Wash:

In-N-Out has been serving hamburgers since 1948 and owns several registrations for its IN-N-OUT marks for restaurants, menu items, clothing and other merchandise. In-N-Out initiated an opposition to an application to register IN & OUT CAR WASH. Then, In-N-Out acquired a registration for the mark IN & OUT covering vehicle repair and painting services and added that registration to its opposition. The Board, however, dismissed the opposition, finding no likelihood of confusion. The Board held that In-N-Out failed to establish that its In-N-Out restaurant marks were famous and thus, the registrations were not entitled to the broader scope of protection given famous marks in determining likelihood of confusion. Although In-N-Out has 262 restaurants, those restaurants are located in only 5 states and most of In-N-Out’s advertising is geographically limited to locations near its restaurants. Further, as a private company, In-N-Out opted not to introduce its sales figures into the record and instead relied upon testimony of one of its executives. The Board found the testimony of that witness was unsupported and speculative and failed to show that the general consuming population has the required level of recognition of the IN-N-OUT marks.

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