TTAB Affirms "EVERLAST" Refusal On Res Judicata And Section 2(d) Grounds

The Board affirmed the USPTO's refusal to register the mark EVERLAST & Design for "wet well mounted pumping stations; wastewater pumping stations; sewage pumping stations" on two grounds: res judicata, since the Board had already affirmed the same refusal of the same mark for the same goods; and likelihood of confusion (again) with the same registered mark EVERLASTING for "valves for controlling the flow of fluids." In re Smith & Loveless, Inc., Serial No. 88497482 (May 16, 2022) [not precedential] (Opinion by Judge Christopher Larkin).

On June 26, 2019, the Board affirmed a Section 2(d) refusal to register applicant's mark, finding confusion likely with the EVERLASTING mark. (Opinion here). In that appeal, the Board refused to consider evidence of third-party registrations and website evidence that was not made of record during prosecution of the application. Undaunted, on July 2, 2019, the applicant applied to register the same mark for the same goods