Tuesday, December 08, 2015

TTAB Dismisses Cancellation, Petitioner Failed to Prove Standing

The Board dismissed a petition for cancellation of a registration for the mark BEACH PIZZA for "pizza" [PIZZA disclaimed], because petitioner failed to establish its standing to bring the proceeding. None of the evidence of record concerned the nature of Petitioner NH’s commercial activities and its need to use the BEACH PIZZA mark. NH Beach Pizza, LLC v. Cristy’s Pizza Inc., Cancellation No. 92058955 (November 20, 2015) [not precedential].

Standing is a threshold issue that must be proven in every inter partes case. In order to meet the standing requirement, a plaintiff need only show that it has a real interest, i.e., a personal stake, in the outcome of the proceeding. In short, the bar is not high.

In its petition, NH Beach Pizza alleged that it "will be damaged should it be prevented from using the generic term 'beach pizza' in the advertising of its goods, and has received claims of likelihood of confusion with the mark by Registrant." Respondent’s answer did not contain any admissions regarding Petitioner’s alleged business activities or Petitioner’s interest in the mark BEACH PIZZA.

In its Brief, Petitioner asserted that it is in direct competition with Respondent. Respondent did not acknowledge that Petitioner is a competitor or that it is engaged in its asserted business activities.

Neither party submitted testimony. The Board found that "[t]he record is utterly devoid of any evidence concerning the nature of Petitioner’s commercial activities and its interest in Respondent’s registered BEACH PIZZA mark."

Petitioner could have submitted testimony or competent documentary evidence as to its asserted need to use the term "beach pizza" and nature of its business activities to establish its standing. Petitioner neglected to do so. Thus, on the record before us, Petitioner has failed to establish a "real interest" and "reasonable belief in damage."

The Board therefore dismissed the petition for cancellation.

Read comments and post your comment here.

TTABlog comment: Pleading standing isn't enough. Either the defendant has to admit facts that will establish plaintiff' standing, or plaintiff itself must submit evidence. Here, neither happened. Could Petitioner seek review by way of civil action under Section, and then add the needed evidence to support its standing?

Text Copyright John L. Welch 2015.


At 10:14 AM, Anonymous Anonymous said...

When I go to the beach, I don't eat pizza.
I eat the sandwiches there.


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