Wednesday, October 10, 2007

Precedential No. 59: Declaration Must be Signed by Declarant

In a precedential ruling that slipped through the PTO cracks (it didn't appear in the TTABVUE database) the Board affirmed a refusal to register the mark EPIL HOSE for pantyhose because Applicant's Statement of Use was deficient. The SOU included a declaration of Applicant's President that was signed by Applicant's attorney, not by the declarant. In re Dermahose Inc., 82 USPQ2d 1793 (TTAB 2007) [precedential].

The declaration began with the following language:

"Paul Zaidman declares: That he is president of the applicant of the above-captioned application and has authorized MYRON AMER, as attorney, to execute this declaration on his behalf; ...."

The declaration then went on to state the date of first use, and was signed as follows:

Examining Attorney Cynthia Sloan found the declaration unacceptable because attorney Amer "attempts to sign a declaration for which he makes no statement." The declaration states "Paul Zaidman declares," and so it must be signed by him.

Applicant maintained that the statement authorizing Mr. Amer to execute the declaration was an implied power of attorney, and in any case the application's power of attorney is an authorization to sign the declaration. Not so, said the Board. The rules "do not provide authority for attorneys to sign another person's declaration." Both Zaidman and Amer had the authority to sign the statement of use (Rule 2.33(a)(1) and (3)), but Amer may not sign Zaidman's declaration.

"Applicant modified the Rule 2.20 statement to indicate that the undersigned is not declaring or subjecting himself to anything. Therefore, it does not meet the requirement for a Rule 2.20 declaration or any other form of oath or declaration and applicant has not complied with the requirements for submitting a statement of use under Rule 2.88 and as a result there is a material inconsistency in the declaration. TMEP 804.04"

Because the declaration was deficient, the Board affirmed the examining attorney's refusal to register.

TTABlog note: The Board wondered in a footnote "why applicant did not provide a substitute declaration to satisfy the examining attorney's requirement and, thereby, avoid this appeal."

Text Copyright John L. Welch 2007


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