Monday, March 08, 2010

CACF Affirms TTAB Ruling: "X-PIPE" is Generic for Engine Exhausts

In a four-page opinion, the U.S. Court of Appeals for the Federal Circuit affirmed the TTAB's decision of March 18, 2009 [TTABlogged here], wherein the Board found the term X-PIPE to be generic for "internal combustion engine exhausts." Monty Allen Campbell v. Bassani Manufacturing, Appeal No. 2009-1534 (March 5, 2010) [not precedential].

Campbell argued that the Board was not permitted to rely on evidence of generic use of the term by competitors, but the court pointed out that the cases say otherwise, and further noted that the Board also relied on sources other than competitor use.

TTABlog comment: The Board had rejected as inadmissible (under TBMP Section 528.05(e))certain documents submitted by Campbell because he did not provide an authenticating affidavit or declaration. After the recent TTAB ruling in Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (February 23, 2009), however, such documents (depending on their nature) may now be admissible as self-authenticating. Should Campbell ask or reconsideration by the court?

Text Copyright John L. Welch 2010.


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