Tuesday, November 21, 2006

TTAB Snuffs Out "CAZADORES" 2(d) and Descriptiveness Opposition for Failure to State Proper Claims

Opposer Altadis U.S.A. Inc. watched its opposition to registration of the mark CAZADORES for lighters, matches, and ashtrays go up in smoke because it failed to state proper claims of mere descriptiveness and likelihood of confusion. To add insult to injury, the Board went on to rule that, even if Opposer had stated proper claims, it still would have lost because of inadequate proofs. Altadis U.S.A. Inc. v. Bacardi & Co. Ltd., Opposition No. 91161729 (November 7, 2006) [not citable].

Altadis asserted that CAZADORES (which translates as "light infantry") is used by cigar makers as a size designation, that Applicant Bacardi's goods travel in the same channels of trade as cigars, and that Bacardi's use of CAZADORES would likely cause confusion and would interfere with Opposer's right to use the term as a size designation for cigars.

However, Altadis failed to plead that CAZADORES is descriptive of Applicant's goods. Moreover, it failed to allege, in the alternative, that it has prior, proprietary rights in the term CAZADORES. "The notice of opposition accordingly fails to state any claim upon which relieve can be granted and, on this basis alone, must be dismissed.

Moreover, the Board went on to observe that even if the pleadings were deemed to be amended to set forth proper claims, "the evidence of record fails to establish opposer's entitlement to relief on either ground by a preponderance of the evidence."

Opposer did submit evidence that CAZADORES is descriptive for a cigar of a certain size and length. However there was "no evidence of record as to whether the term 'CAZADORES' has any descriptive significance with respect to smokers' articles such as lighters, matches and ashtrays." [emphasis in original]. Opposer's alleged fear of potential harassment by applicant "is misplaced," since the respective goods of the parties "are plainly not the same products."

"Allowance of the registration which applicant seeks thus would not empower applicant to harass opposer and others who utilize the term 'CAZADORES' descriptively as a size designation for cigars."

Turning to the (hypothetical) claim of priority and likelihood of confusion, Opposer Altidis offered no admissible proof of priority. It submitted excerpts from its own website that were not properly authenticated, and in any case they were dated after Applicant's filing date. Moreover, Opposer failed to prove any proprietary rights in CAZADORES, instead maintaining that it is a size designation for cigars.

The Board therefore dismissed the opposition.

TTABlog comment: Ouch!

Text Copyright John L. Welch 2006.


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