Friday, July 13, 2007

CAFC Affirms TTAB Dismissal of "DYKES ON BYKES" Opposition for Lack of Standing

In a non-precedential opinion (here), the U.S. Court of Appeals for the Federal Circuit has affirmed the TTAB's decision (here) dismissing for lack of standing, the opposition of Michael J. McDermott to registration of the mark DYKES ON BIKES for education and entertainment services for women motorcyclists. The appellate court agreed that McDermott had sufficiently pleaded a real interest in the proceeding, but had failed to establish any reasonable basis for believing that he would be damaged by the registration. McDermott v. San Francisco Women's Motorcycle Contingent, Appeal No. 07-1101 (July 11, 2007) [not precedential].

McDermott made two claims under Section 2(a): that the mark was disparaging because it included the term "dykes," and that it was scandalous and immoral because the full mark is associated with a pattern of illegal activity by the applicant.

The court pointed out that there are two ways to establish the reasonableness of belief of damage. First, by showing that opposer "possesses a trait or characteristic that is clearly and directly implicated by the proposed mark." Because McDermott is a man, he was not so "implicated" by the mark. The second way is to allege that "others share the same belief of harm from the proposed trademark." Surveys, petitions, or affidavits from public interest groups would support the allegation. McDermott, however, made no such allegations in his opposition papers and cited no supporting evidence regarding such a shared belief.

Therefore the CAFC affirmed the TTAB's dismissal of the opposition.

TTABlog note: For further discussion of the application and the TTAB decision, see the TTABlog postings here, here, and here.

Text Copyrigh John L. Welch 2007.


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