[E-trademarks] competing volume of evidence question

[diana lo-dp.com]

Interested in whether anyone has successfully persuaded TTAB that their volume of evidence in a 2(d) outweighs the examiner's. Overall issue is that the USPTO appears to have inconsistent practice history. Examiner has refused registration because an identical mark exists in another class, and there are a variety examples of companies providing both types of goods. On the other hand, there are a substantial number of counter-examples of coexistence, i.e., Company 1 sells goods in one of the classes, Company 2 sells goods in the other class, mark is identical, and they coexist, without 2(d) ever being issued.  Examiner has issued 2(d) and is sticking by it, indicating that not bound by what other examiner do. The evidence in terms of USPTO records is conflicting, and the USPTO practice is inconsistent, with many records on both sides. Does something like this get resolved on each examiner's whim, or is there something more predictable and orderly? Thank you!

Diana Palchik
palchik.net
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://oppedahl-lists.com/pipermail/e-trademarks_oppedahl-lists.com/attachments/20240208/61c46662/attachment.htm>