CAFC Hears Oral Argument Regarding Distinctiveness of Religious Habit
Yesterday, the CAFC held a lively oral argument in an appeal [2009-1432] from the Board's decision in Mary Queen of the Third Millennium, Inc. v. The Foundation for a Christian Civilization, Inc., Opposition No. 91157073 (March 25, 2009) [not precedential]. [TTABlogged here]. An mp3 of the oral argument may be found here.
Two feuding religious organizations had faced off before the TTAB in a dispute involving the registrability of the religious habit design shown above for "clothing, namely [a] ceremonial habit worn by distinguished religious representatives in certain ceremonies" and for "promoting public awareness of the need for healthy and religions families in the United States." The Board found the habit design neither inherently distinctive nor possessed of acquired distinctiveness, and so it sustained the opposition. The foundation appealed only from the refusal regarding services and not the goods.
Appellant argued that the Board applied the wrong burden of proof to the issue of inherent distinctiveness, that Opposer Mary Queen had failed to provide evidence establishing that the habit at issue is not inherently distinctiveness, and that the Board's judicial notice regarding common features of religious habits did not supply the needed proof. Appellee urged that the ultimate burden of proof is on the applicant to prove inherent distinctiveness and that the Board's judicial notice was a proper basis for the Board's finding on that issue.
TTABlog postrcript: Note the court's whispered side comments around minute 44.
TTABlog post-postscript: The court affirmed on January 7th, without opinion.
Text Copyright John L. Welch 2010.
posted by John L. Welch @ 1/07/2010
2 comments
2 Comments:
I was in attendance at this oral argument yesterday (it was the third of three arguments, the first of which was an International Trade argument that ran an hour and fifteen minutes, and the second of which was a patent validity argument revolving around how many yarns were required to serve a particular function in a fabric).
The "big moment" in the trademark case, it seemed to me, came when counsel for the opposer sought to highlight the alleged non-distinctiveness of the habits at issue by comparing them to football uniforms. The judges seemed rather surprised at this comparison, with Judge Bryson in particular noting the degree of effort to which professional football teams go to protect their trade dress. Council for the opposer tried to save the argument by pointing out that a high school football uniform would draw attention, but its source would go unrecognized.
Another interesting moment was the inquiry by Judge Michel (I believe) as to whether the parties, given representations by the applicant that it did not consider opposer's use to be "in commerce", had attempted to settle the issue. Counsel's response to this question was fairly subdued.
Oral argument might have been lively, but the court clearly found little of interest. They affirmed without opinion the very next day.
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