What is an "Ongoing and Existing Business" For Purposes of the Anti-Trafficking Provision of Section 10?
Pamela Chestek, at her Property, Intangible blog, discusses (here) a recent decision of the U.S. District Court for the Southern District of New York, involving the validity of an assignment of an ITU application. Creative Arts by Calloway, LLC v. Christopher Brooks d/b/a The Cab Calloway Orchestra, Civil Action No. 09-CIV-10488 (CS) (SDNY Dec. 27, 2012). The court entered judgment summarily in favor of Defendant Brooks, concluding that the assignment was invalid under Section 10 of the Trademark Act because, at the time of the assignment, the assignor did not have an "ongoing and existing business" required by Section 10 for a valid assignment of an ITU prior to the filing of a statement of use or amendment to allege use. Pam notes the sparse and varying interpretations of Section 10 that have arisen in this context. Note that the decision stems from a civil action for review of a TTAB decision [TTABlogged here] in favor of Christopher Brooks on the issue of likelihood of confusion, the assignment issue being newly-raised as a defense in the civil action.
Marty Schwimmer, at the Trademark Blog, chimes in here.
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