[E-trademarks] competing volume of evidence question

[Carl Oppedahl]

A listserv member asks to respond anonymously ...

This is the bane of my existence. A couple of websites, not even any 
registrations, and boom!, the goods/services are related, QED. No 
evaluation of the market size or whether those websites accurately 
represent the type of business or they are outliers instead. (Are skates 
and bicycles related? Yes, if you only look at the CCM brand. 
<https://us.ccmhockey.com/aboutus.html> Turns out bicycles are hard to 
sell in the winter in Canada but skates do great!) Pre-internet, when 
they used only registrations, it was at least logical; if there are 
several then it is arguably directional that the goods are related - but 
websites? But I don't think I've yet been effective in explaining why 
this just isn't logical or right. Instead you just get an examining 
attorney entrenched in their position (as lawyers we so insist on being 
right!) and an exercise of discretion never enters the equation.

There is this non-precedential decision where the TTAB held that five 
websites and six registrations wasn't enough - /In re Panini America, 
Inc./, Serial No. 88960212 (not a precedent) (July 12, 2023) (“the 
totality of the website and third-party registration evidence falls 
rather short of demonstrating that consumers would expect sports trading 
cards and magazines featuring sports information could emanate from the 
same source”); The TTABlog post here: 
http://thettablog.blogspot.com/2023/07/ttablog-test-is-playbook-for-sports.html

I wish it were precedential. I take it as a sign, though, that the TTAB 
is more discerning and realistic in their analysis, so maybe the answer 
is to appeal more.
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