On July 20, 2015, in Juice Generation, Inc. v. GS Enterprises, LLC, the US Court of Appeals for the Federal Circuit reversed the Trademark Trial and Appeal Board's (TTAB) decision to sustain an opposition because the TTAB failed to adequately consider third-party uses and the applied-for mark in its entirety (No. 2014-1853, (Fed. Cir. July 20, 2015)).

Juice Generation, Inc. applied to the US Patent and Trademark Office to register for its juice bar services a mark consisting of:

GS Enterprises, LLC owns four related registrations, two of which include designs, that all incorporate the phrase "PEACE & LOVE" for restaurant services. GS opposed Juice Generation's application on the ground that Juice Generation's mark was likely to cause confusion with GS's marks. The TTAB sustained the opposition and refused to register Juice Generation's mark.

On appeal, the Federal Circuit concluded that the TTAB erred in failing to:

First, the Federal Circuit noted that the TTAB properly applied the non-exhaustive thirteen DuPont factors in its likelihood of confusion analysis (In re E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973)). However, in evaluating those factors, the TTAB did not adequately assess and weigh the strength or weakness of GS's marks because it did not appropriately consider Juice Generation's uncontroverted evidence of third-party uses of marks containing "peace" and "love" followed by a third, product-identifying term.

The TTAB discounted these third-party registrations because the record contained no specifics on the extent of sales or promotional efforts surrounding third-party uses of these marks, and therefore, the TTAB felt it was unable to determine the impact these marks had on the minds of the purchasing public. However, the Federal Circuit noted that:

Since the TTAB did not evaluate whether and to what degree the evidence of third-party use and registrations indicates that the phrase PEACE & LOVE carries a suggestive or descriptive connotation in the food service industry, its likelihood of confusion analysis was flawed. In addition, it was important for the TTAB to consider the third-party registrations because GS made statements during the prosecution of one of its applications that supported Juice Generation's argument that PEACE & LOVE is merely suggestive or descriptive, and entitled to a narrower scope of protection.

Finally, the Federal Circuit also found that the TTAB should have considered Juice Generation's mark in its entirety. The TTAB failed to consider how the three-word phrase in Juice Generation's mark may convey a distinct meaning from the two-word phrase used by GS, including by having different connotations in consumers' minds. Though the TTAB was entitled to give more or less weight to particular components, it was required to consider the mark as a whole.

Ultimately, the Federal Circuit held that both of these errors required a remand so the TTAB could consider third-party use evidence in its likelihood of confusion analysis.