TTAB Denies Cancellation Petition Because Petitioner Failed to Prove Standing

The Board denied this petition for cancellation of a registration for the mark MORALE PATCH for "Ornamental cloth patches; Patches for clothing made of rubber, plastic and vinyl," because Petitioner failed to prove its standing. Petitioner Violent Little Machine claimed that the registered mark is merely descriptive or generic. It alleged that it is in the business of selling patches at its website at www.violentlittle.com. However, Petitioner failed to prove its allegations regarding its business and therefore failed to establish its standing. Arms Keep, LLC d/b/a Violent Little Machine Shop v. Morale Patch Armory LLC, Cancellation No. 92065573 (October 30, 2019) [not precedential] (Opinion by Judge Cheryl S. Goodman).

"Standing is a threshold issue that must be proven by the plaintiff in every inter partes case." Violent Little Machine alleged that it sells morale patches; that allegation, if proven at trial, would suffice to establish its standing in this case.

However, Petitioner Violent Little Machine took no testimony nor did it introduce any other evidence to prove its standing based on the allegations in the petition to cancel. The documents it submitted under notice of reliance were relevant to the descriptiveness or genericness grounds but did not relate to its own activities.

Violent Little Machine submitted webpages from its website as an attachment to its reply brief, in a belated attempt to prove that it sells patches. That proposed evidence was, of course, untimely. And so it asked the Board to take judicial notice of same, claiming that "the web pages are easily verifiable, and the accuracy of these web pages cannot reasonably be questioned."

The Board refused to take judicial notice: "[W]eb pages from Petitioner’s website do not constitute the type of source whose accuracy cannot reasonably be questioned nor do the web pages contain facts that are generally known, as contemplated by Fed. R. Evid. 201(b)(2)." In any event, there was "no corroborating testimony or other evidence that Petitioner owns or controls this website." Without such testimony, "the website evidence would not be admissible to prove the truth of the matter contained therein."

Respondent’s answer did not contain any admissions that would establish petitioner’s standing.

Therefore, the Board denied the petition for cancellation.

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TTABlog comment: I guess petitioner needed its morale patched up after this defeat.

Text Copyright John L. Welch 2019.