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Category: Trademark Law

Jan 10 2023 by tom

How To Sign A Trademark Filing

Posted in Trademark Law

Sometimes clients are confused about how to sign a trademark filing like a trademark application or response to a non-final or final office action.

When we prepare a trademark application, we send it to the client for review and electronic signature.  The Trademark Office requires that electronic forms be signed with an “S-signature,” which is usually your own name between two forward slashes (“/ /”).

For example, if your name is John Smith, you might sign as “/John Smith/” Now, in the video above, I said that you “must” sign your name exactly as it appears in the “Signatory’s Name” section.  That’s not really true – you can actually sign it in a number of different ways.  But if you stray from your name, the Trademark Office may not accept the signature, so really you should sign it exactly the same way.  This will make things much clearer and straightforward for the firm and the Trademark Office.

The Trademark Office has a long list of good and bad examples of S-signatures here: https://www.uspto.gov/sites/default/f…


Dec 12 2022 by tom

What happens when a trademark owner dies?

Posted in Trademark Law

When a trademark owner dies

Sky above Green River

Sky above Green River, Colorado

, there can be uncertainty in who owns the trademark or whether the trademark is even still valid and subsisting.

There is always an owner of a trademark, usually a company but sometimes an individual.  No matter who the trademark owner is, the trademark is valid only so long as it is being used; trademark rights depend on trademark use.

If a company owns a trademark, there are probably many people ensuring continuity of the business.  This helps ensure that the trademark will not accidentally become abandoned.

When an individual owns a trademark, there are some risks.  One of those is that when a trademark owner dies, the trademark may abandon.  This can happen in a few ways.

First, trademarks at the Trademark Office require periodic maintenance.  If the trademark owner fails to file the trademark maintenance paperwork in time, the Office will cancel the trademark registration.

Cancellation of a trademark is not the same as abandonment of a trademark.  However, one of the other possible consequences of the death of the trademark owner is that there is simply no one who is using the trademark anymore.  In other words, if the trademark owner was the only person selling the products or offering the services, then when the trademark owner dies, there won’t be anybody left to sell those products or services.  It no one is selling the products or services anymore, then the trademark cannot be used.  Therefore, the trademark becomes abandoned.

When a trademark owner dies, the trademark will transfer as an asset of the estate.  If it was specifically identified in the will, then it would transfer according to that.  If not, then it would be handled in probate like other personal assets.

If a new person or entity is going to take over the trademark and provide the goods or services that the deceased previously did, then the new person should own the trademark.  To do that, you must a trademark assignment with the Trademark Office.  Most often, this means that the estate’s personal representative will need to sign the assignment.

A trademark attorney or an estate attorney can prepare the trademark assignment.  However, if the estate attorney prepares it, he or she must be careful, because there is specific language that must be included when transferring a trademark.  That language is not commonly used in other areas of law.

Once the assignment is fully signed, it must be recorded at the Trademark Office to actually effect the name change in the Trademark Office records.


Nov 29 2022 by tom

Changing the Applicant Name in a Trademark Application

Posted in Trademark Law

In the past year, I have dealt with one issue more times than I have in the previous ten years of practice: correcting or changing the applicant name in a trademark application.  Apparently trademark applicants are mis-identifying themselves more frequently in trademark applications than they used to.

Changing or correcting a trademark applicant’s name is not always a straightforward or safe thing.  The reason for the correction dictates whether it can be made at all.  Some changes are simple, some are complicated, and some will potentially invalidate the trademark application.

Different Types of Changes

A change of the trademark applicant name may need to be made if any of the following have occurred:

  • Owner changed its name without a transfer of assets
  • Transfer of ownership of the trademark
  • The owner was identified incorrectly in the original trademark application filing

Trademark Filing Basis Can Limit the Change

The law limits the extent to which a trademark applicant can change an owner’s name on an intent-to-use trademark application.  You generally cannot assign an intent-to-use trademark application to a third-party.

Any name changes of intent-to-use applications must reflect only changes of ownership to a business successor for the goods and services connected to the trademark.  Otherwise, you must wait until the trademark application’s filing basis changes to “in-use,” such as after filing an Amendment to Allege Use or a Statement of Use.

Entity Name Change

Sometimes, a company changes its name without merging or selling.  When the company simply undergoes a name change, then updating the applicant name in the trademark application is fairly easy.  Go to the Electronic Trademark Assignment System (ETAS) and then select “Change of Name”:

Change of name form for a trademark application

ETAS Change of Name Form for a Trademark Application

You may also need to change the entity name if the owner was a person and changed his or her last name.  For instance, if the owner got married and adopted a new last name, she could change her name in this way.

Transfer of Ownership

If the trademark has changed hands, then you should record a transfer of ownership or a trademark assignment.  Typically, this will happen when one company buys a product line or another company.

The Trademark Office requires submission of the document effecting the transfer of ownership.  This document will become public record.  For this reason, big agreements sometimes include a separate trademark assignment as an exhibit to the agreement.  This allows the attorneys to file only the exhibit without revealing all the details of the big agreement.

Correcting a Mis-Identified Applicant

When a trademark application initially identifies the wrong applicant, real problems can arise.  Changing the applicant name in a trademark application like this has to be done with extreme caution.  It can result in the invalidation of the application.

First, a trademark application must always identify the owner of the trademark as the applicant.  When an application is filed in the name of the wrong party, this defect cannot be cured by amendment or assignment.  The application is then void and invalid.

If there was a mistake in identifying when the applicant’s name was entered, then this might be correctable.  There are only a few situations in which this correction can be made:

  • If the trademark owner provided its trade name, or its dba, but that name is not actually its legal name, then the Trademark Office does permit a correction. You can fix the application to change the applicant name from the dba to the entity’s actual legal name.
  • If the application identified a division of the company, rather than the company itself, this mistake can be corrected.
  • If you forgot to put something minor like “The” or “Inc.” then in most cases this mistake can be corrected. The Trademark Office will not tolerate any change more significant, however.
  • If there is an internal inconsistency in identifying the owner, then the Office will permit correction of the applicant name. For example, in some places, you may have listed the owner as a company and in other places as an individual; the Office will let you correct this to make all references to the owner consistent.
  • If the owner changed its name before filing the application and used the old name on the application, then the owner may correct the applicant name to the new name. You may be required to explain that the previous name and current name identify the same enterprise.
  • Identifying partners in a partnership, rather than the partnership itself, can be corrected.

Some specific situations that cannot be fixed:

  • Trademark applications that identify an employee of a company as the owner, rather than the company itself, cannot be corrected.
  • If the trademark application identifies a first company as the trademark owner, but prior to the filing date of the trademark application, that first company had actually already transferred the trademark to a second company, then the trademark application is void.
  • If a trademark is owned by a joint venture, but the application only names one of the joint venturers, then the application is void.
  • If the trademark application identifies a related company which is not the owner, then the trademark application is void. For instance, if a sister company owns the trademark application, or if a subsidiary company owns the application.

Nov 14 2022 by tom

Rubik’s Cube Intellectual Property

Posted in Patent Law, Trademark Law

In honor of the Rubik’s Cube craze that has recently hit the Galvani household, we decided to take a closer look at how this iconic toy was created and what type of intellectual property protection it has enjoyed over the years.

Rubik's Cube

Rubik’s Cube

Erno Rubik was a Hungarian design teacher who loved puzzles.  He set about creating a toy based upon geometry in hopes of helping his students learn about three-dimensional objects.  Rubik invented a toy with 26 tiny cubes in six different colors joined together into one big cube that he called the “Magic Cube” in 1974 and by 1980, it was being sold in toy stores world-wide under the name “Rubik’s Cube.”  This famous puzzle toy has been the subject of various infringement suits over the last forty years.

Rubik received patent protection for the Rubik’s Cube toy in Hungary in 1977.  He obtained little patent protection world-wide, however, only receiving patents in Belgium and the United States.  Rubik was granted a U.S patent on March 29, 1983 for a “Spatial Logical Toy.”  Rubik granted the toy company Ideal Toys a license to sell the Rubik’s Cube toy.  Larry D. Nichols had a 1972 patent for a “2x2x2 Puzzle with Pieces Rotatable in Groups,” which was for a 2×2 puzzle held together with magnets.  He sued Ideal Toys for patent infringement.  After losing this infringement case in 1984, Ideal Toys appealed and, in 1986, a court determined that the original Rubik’s Cube toy did not violate the Nichols patent, but a pocket-sized version of the Rubik’s Cube did.

The U.S. patent for the Rubik’s Cube expired in 2000, but Seven Towns, the exclusive licensee of Rubik’s Cube’s IP rights at the time, had a creative strategy for finding protection in another way.  Seven Towns attempted to register trademark – or trade dress – protection in the shape of a Rubik’s Cube toy to prevent knock-off versions.  It registered the cube shape with the European Union Intellectual Property Office in 1999.  Trade dress and trademark protection can be extremely valuable since they can potentially continue forever in spite of the expiration of related patents covering the underlying product.  The EUIPO granted the trademark, and Seven Towns enjoyed its protection until it was challenged in 2006 by another toy company called Simba Toys.  After a 10-year battle, Simba Toys won its argument that the cube’s shape contained a technical solution that should be protected by a patent, not a trademark.  The EU canceled the Rubik’s Cube trademark.

These days, you can find plenty of knock-off puzzles, but most major retailers continue to sell the original Rubik’s Cube and related puzzle products under the Rubik’s name which are marketed as the “World’s No. 1 Puzzle.”


Nov 04 2022 by tom

Office Action Response Deadline Change

Posted in Intellectual Property News, Trademark Law

Trademark owners will soon have a shorter office action response deadline.

SpaceX flies over Phoenix after launching from Vandenberg

SpaceX flies over Phoenix after launching from Vandenberg

Beginning December 3, 2022, the Trademark Office will cut the normal six-month response period to just three months.

When a trademark application undergoes examination, the Trademark Office sends an office action to raise and address issues with the application.  Until now, applicants have had 6 months to respond to the action.  This was codified in Trademark Office regulations.

Now, applicants have less time.  As part of the implementation of the Trademark Modernization Act, applicants will now have to respond within 3 months of the issue date of the office action.  However, applicants can “buy back” the full months by paying a $125 extension fee.  This will let them have the full 6 months for a response, but applicant have to file the request before the 3-month office action response deadline ends.

This system is similar to the one that the Patent Office uses.  In the Patent Office, the 6-month office action response deadline is shortened to 3 months, and applicants must pay extension fees for individual months.  The extensions are purchased in single-month increments, so applicants can buy an extension for the fourth month, or for five months, or for six months.  The extensions under the patent system are not due preemptively; applicants request them when filing the response in the fourth, fifth, or sixth months.

Not all trademark applications will actually have the abbreviated office action response deadline.  Applications filed into the US through the Madrid Protocol will continue to retain the 6-month response period.  More information is available from the USPTO here.


Sep 22 2022 by tom

Trademark Coexistence Agreement

Posted in Trademark Law
National Mall in August

National Mall in August

A trademark coexistence agreement is an agreement between two parties about their respective use of the same or similar trademarks.  They generally allow two trademark owners to use identical or similar marks, usually in a manner designed to avoid consumer confusion.  They are helpful in several situations.  A trademark coexistence agreement can be used to resolve disputes between two parties, or to prevent potential disputes, or to overcome rejections by the Trademark Office.

Trademark Coexistence Agreement to Resolve Disputes

Trademarks are fundamentally intended to prevent consumer confusion.  When two marks are the same or similar, the public can be confused about who the source of the product or service is.  This can flare as a trademark infringement dispute, where one party sues – or threatens to sue – the other party for having a trademark which is too similar to its own.

If the parties can resolve this dispute, they will usually execute an agreement.  The agreement might require one party to change its name, or it might allow that party to continue using its name, perhaps for a short period of time or maybe even permanently.  For those latter two options, a trademark coexistence agreement – or at least a coexistence provision – will be used.

To Prevent Disputes

Sometimes, before a client files its trademark application, it will conduct a pre-filing clearance search to see if there are other similar or identical marks already registered or used.  This allows the client to evaluate the risk of proceeding forward.  Occasionally, a trademark applicant will proceed forward even though there is a similar trademark already registered, because the applicant feels the mark is different.  In that event, the applicant will sometimes proactively reach out to the prior trademark registrant and request a trademark coexistence agreement to potentially head off even the unlikely risk that consumers will be confused.

To Overcome Rejections

When a trademark application is filed, the Trademark Office examines it before it will register the trademark.  During examination, the Office will reject the trademark application if it finds any registered marks which pose a likelihood of confusion.

The rejection will stand, and the application will become abandoned, unless the applicant responds and overcomes the rejection.  Often times, the applicant can present arguments based on case law or evidence.  Sometimes, however, there may be reasons to present other arguments.

A trademark coexistence agreement is persuasive evidence in response to a rejection.  While not completely binding, the law gives significant weight to a trademark coexistence agreement.  Examiners will generally, but not always, withdraw a rejection the applicant has a trademark coexistence agreement.  However, Examiners will refuse to accept those agreements when they fail to address real conditions and concerns.

Trademark Coexistence Agreement Elements

The Trademark Office’s desire to see “real” agreements reflects the need for a trademark coexistence agreement to be more than just an agreement to use two similar marks.  It must actually address the likely concerns of not just the trademark owners but the consumers as well.  For instance, it could discuss concerns such as:

  • The level of experience and familiarity the two parties have with the respective industry and their customers
  • The similarities and differences in the marks’ sight, sound, and appearance
  • The similarities and differences in the goods and/or services
  • The similarities and differences in the customers and channels of trade
  • Restrictions on any future trademark filings of the parties
  • Amendments to the trademark application or registration details
  • Geographic restrictions on the parties’ respective uses
  • Goods and/or services restrictions on the parties’ respective uses
  • Industry restrictions on the parties’ respective uses
  • Any limitations to how the parties’ trademarks will be displayed or styled
  • Any disclaimers that either of the parties should use
  • Any restrictions on how the parties’ goods and/or services may be advertised
  • Any restrictions on the channels of trade for the parties’ goods and/or services
  • What the parties will do in the event of actual confusion

Trademark coexistence agreements are not the right solution in all situations.  In some cases, a trademark coexistence agreement can weaken a trademark owner’s rights and should be avoided.  Speak with a local trademark attorney if you think you need a trademark coexistence agreement or have been approached by someone requesting you to sign one.


Jul 24 2022 by tom

Crumbl Cookies Trademarks

Posted in Intellectual Property News, Trademark Law
Riding up to Big Mountain, UT

Riding up to Big Mountain, UT

Earlier this year, Crumbl Cookies sued two competitors.  Crumbl started in Logan, Utah, not far from where I happen to be writing this today in Bountiful, Utah.  Crumbl sells large ornate cookies in pink boxes and has a menu that rotates periodically.  Crumbl feels that other companies have tried to jump into the same space, trade off their goodwill and reputation, and compete unlawfully.

Crumbl sued Crave Cookies and Dirty Dough for trademark infringement, trade dress infringement, and unlawful competition.  The CEO of Dirty Dough published the trademark complaint on his LinkedIn and Facebook pages, so this post addresses that action only.

Essentially, the complaint boils down to Crumbl’s claim that “Dirty Dough … sells and promotes cookies using packaging, decor, and presentation that is
confusingly similar to Crumbl’s established and successful trade dress and brand identity.”

Crumbl claims it has certain intellectual property rights in its business, including:

  • Delivery services for its scratch-made gourmet cookies
  • Packaging in oblong pink boxes that have “no extra space”
  • The color pink
  • The CRUMBL COOKIES logo, featuring a “whimsical, outlined-shaped drawings, including a cookie with a bite taken out of it”
  • Seamless ordering expiring on the Crumbl app
  • Weekly rotating menus

Crumbl will have to establish that it actually has these rights, which will involve arguing that others don’t.  One challenge for Crumbl will be differentiating and delineating its packaging, cookie styles, menus, etc. from those of other cookie companies.  This could be quite difficult.  It will involve defining the market, defining the products, defining the customers, identifying the features or characteristics that make its product unique among its competitors, and other things that are highly fact dependent and may require a great deal of expert work.

Crumbl will then need to argue that Dirty Dough is infringing its rights.  The complaint makes a first pleading on this, for example, by suggesting that the two companies use the same channels of trade including storefronts, websites, and social media accounts.  Of course, for that example, what company doesn’t sell through those channels?  Crumbl attempts to paint the companies as similar because they both use pictures on their respective Facebook pages showing cookies laid flat, shot from above.  Crumbl argues that the two companies both use a cookie image with a bite taken out.  Crumbl even presents in its complaint side-by-side photos of cookies decorated in a similar fashion, such as with a white swirl pattern, chocolate candy bar, or sprinklers:

Crumbl Cookies compared to Dirty Dough cookies

Crumbl on the left, Dirty Dough on the right

These are all going to be difficult arguments.  Certainly, Crumbl has grown quickly and become well-known in Utah.  However, whether it has the sort of fame and exclusivity necessary to exercise the rights it claims it has is an entirely other story.  The case will take a great deal of time to develop, and will probably twist and turn as evidence is exchanged, experts testify about cookie marketplaces and packaging practices, and the parties focus on some arguments more than others.  At this stage, it is far too early to tell what will happen, but this case and the Crave case do establish one thing: they show would-be competitors that Crumbl is not afraid to go to the mat.


Jul 05 2022 by tom

Trademark Assignment

Posted in Trademark Law
Boston Public Library

Boston Public Library

Trademarks are assets of a company. Just like any other asset, they can be bought and sold. However, unlike other assets, trademarks cannot generally be sold by themselves. In other words, a trademark must be sold with something else, something which is related to the trademark. A trademark assignment is the typical mechanism by which a trademark is transferred.

Proper Trademark Assignment

A trademark assignment is either or both of the act of transferring a trademark and the document by which the trademark is actually transferred. Companies will transfer a trademark when they are bought or acquired, or when a specific service or product line is sold or spun off. A trademark assignment actually changes the ownership of the trademark from the first party to the second.

A trademark assignment, if done properly, will usually identify and state a few things. First, the document will identify the trademark itself, usually with a serial or registration number (if a trademark application has been filed or granted), the mark itself, and often with the list of goods and/or services with which the mark is used. This information is often sufficient to clearly identify a trademark. For common-law trademarks – trademarks which are merely used but not filed at the USPTO – the trademark assignment may only be able to identify the mark and its corresponding goods/services. If possible, additional information can be included describing the first use of the mark or geographic areas of use, but one must be careful not to identify that information in a way that unintentionally limits the scope of the trademark’s rights.

The trademark assignment should also identify whether or what other assets, or products, or goodwill is being conveyed with the trademark. The transfer cannot occur in isolation. For example, if Nike were to sell its Air Jordan trademark to Adidas, it could not just give the trademark to Adidas in exchange for a boatload of cash; it would have to also move its inventory of shoes, or plans for designing the shoes, or the Nike division and all the workers responsible for designing Air Jordan shoes.

Improper Trademark Assignment

A trademark assignment can be improper for a number of reasons.  For example, someone may attempt to improperly assign an intent-to-use application, may assign the trademark without a written document, or may not actually have the rights to assign it.  One problem that can arise is a naked assignment. A naked assignment is a transfer of a trademark without any accompanying goodwill. In the above example, if Adidas just sent money to Nike for the ability to use AIR JORDAN and for nothing else, that would be a naked assignment and presumed invalid.

If a trademark assignment transfers a trademark from a company that no longer exists, that assignment can be invalid. Depending on the state law, some companies have the ability to transfer assets during a limited wind-down period after dissolution of the company, but those laws vary from state to state or may not allow it all. Even the local law forbids a non-existent company from transferring a trademark, the conveyance may be invalid. In some cases, clawback, retroactive, or nunc pro tunc agreements might be a possibility, but those should be carefully researched and approached with great skepticism.

Separate Trademark Assignment Documents

When conveying a pending or registered trademark, it is best to record the trademark assignment with the USPTO. Recording at the USPTO makes the assignment public record. As such, sometimes parties may want to draft a trademark assignment as a stand-alone document. This allows those parties to record the trademark assignment by itself without making all the details of a much larger deal public.

For example, if Nike were acquiring Under Armor, there would be hundreds of pages of agreement details covering purchase price, debt obligations, transition periods, stock purchases, employee handling, etc. The vast majority of these details would be irrelevant to the transfer of the trademark, and neither company would probably want to make those details public (and likely, the agreement would have a confidentiality clause preventing those details from being made public). To still be able to record the trademark assignment, the lawyers would put the assignment in an exhibit. The exhibit would probably be only one or two pages and would not contain any details regarding the bigger detail. The lawyers could then file only that particular exhibit with the USPTO while maintaining the rest of the agreement in confidence.


Apr 29 2022 by tom

Electronic Trademark Registration Certificates

Posted in Trademark Law

The Trademark Office will soon start issuing electronic trademark registration certificates instead of paper ones.

The Trademark Office has for years created an electronic registration certificate and mailed a paper version, which has a decorative stamp and ribbon. After June 7, 2022, if trademark owners want a physical copy of the registration certificate, they will have to specifically order one and pay a $15-25 fee.

The Trademark Office has been trying to modernize its processes. The trademark offices of many other countries around the world have issued only electronic trademark registration certificates. The USPTO now harmonizes with those practices.

The Trademark Office also claims that “many of our customers indicated that they would prefer to receive their electronic trademark registration certificate in a digital format rather than as a paper certificate.” I find this a bit hard to believe because the digital format has been available for over a decade at an easily-accessible, public website. Perhaps customers have complained that they don’t want the paper certificate because it is redundant. I have actually found the opposite, that clients do want the paper copy and sometimes want additional copies for display.

The Trademark Office also claims this will increase the speed with which registration copies are issued. I’m not sure this is true either, as electronic trademark registration certificates are already available online the day they issue – the paper copies just come in the mail a week or two later. Rather than making the process faster, the Trademark Office just eliminated a step at the end. It should, however, have a slight environmental impact. The Trademark Office issues about 400,000 trademark registration certificates a year, which is at least some paper savings.

Applicants who file applications after June 7 will have to order paper registration certificates and pay a fee. If they want a one-page “presentation copy” on heavy paper with a gold foil seal, the government fee will be . If they want a certified copy – used in court or in foreign trademark office – the fee will be $15. A presentation copy is not a certified copy. Certified copies are officially stamped and issued, while presentation copies are essentially just ornamental.


Feb 25 2022 by tom

Receiving a Trademark Final Office Action

Posted in Trademark Law
Arizona Snowbowl Ski Resort above Flagstaff

Arizona Snowbowl Ski Resort above Flagstaff

Trademark applications are examined after they are filed.  This is part of the trademark prosecution process, and it sometimes results in an initial refusal, or “office action.”  Office actions are simply official letters from the Trademark Office.  The Trademark Office uses them to communicate about issues that have to be resolved in an application. If you receive multiple office actions, one will be considered a final office action.

When any office action issues, you have an opportunity to respond.  Under current law, you have six months to file a response.  Fail to file in that time, and your application will abandon.  Often the issues in an office action can be resolved fairly straightforwardly.  Sometimes, a quick phone call to the Examiner is enough.

Occasionally, though, the issues raised are more serious obstacles, and in some cases, one response may not be sufficient.  If your initial response does not resolve the issues in the office action, the Trademark Office will typically send a second office action.  A second office action usually is a “final office action.”

The Trademark Office sends a trademark final office action when the issues are ones that were presented at least once before and when you at least had a chance to resolve them.  There are a limited number of options for responding to a final office action:

Request for Reconsideration

One option for responding to a trademark final office action is submitting a request for reconsideration.  This is essentially a second bite at the apple.  When you file a request for reconsideration, you can present new arguments and evidence to try to convince the Examiner that you are right.  If you file a request for reconsideration and the Examiner does not side with you, the application will become abandoned unless you take further action.

If you file the request early in the response period, then the Examiner might return the denial before the six months is up.  If so, then you can potentially file a notice of appeal to prevent your application from abandoning. The Trademark Trial and Appeal Board (“TTAB“) hears and decides appeals.

However, if you file the request late in the response period, the Examiner may very well return a denial after your six months has expired.  You will not have to file anything else in the application at this point, and it will abandon.

Because of these timing concerns, some applicants file a notice of appeal when they file a request for reconsideration.  This assures them an escape route: if the Examiner denies the second argument, then they will at least have one last shot with an appeal.  And, typically, when a notice of appeal is filed together with the request for reconsideration, the TTAB will actually suspend the appeal to give the Examiner a chance to review first.  After all, if the Examiner reviews it and agrees with you, then it saves the TTAB considerable time.

Appeal

An appeal takes the case off the Examiner’s desk and asks that a panel of administrative judges at the TTAB review it.  To file an appeal, you must first file a notice of appeal and then follow-up with an appeal brief.  The Examiner gets a chance to file a brief in response to yours.  You then have the option to file a reply brief – a final brief that address the Examiner’s brief.  Once the case is fully briefed, the TTAB then considers all of the briefs and the evidence of record.  It renders a decision.  The TTAB frequently affirms the Examiner, so you must pursue an appeal with caution and care.  If the TTAB disagrees, your only option to save the application is to further appeal the decision into the federal court system.  If the TTAB agrees with you, however, the case will be returned to the Examiner with instructions to allow the application to continue through prosecution.