TTAB Orders Cancellation of Part of POLO GIRLS Registration Due to Nonuse

The Board granted in part this petition for cancellation of a registration for the mark POLO GIRLS for "Organizing and conducting polo sporting events for the purpose of fundraising; Entertainment in the nature of ongoing television programs in the field of polo sports events, and polo lifestyle," finding that Respondent Elizabeth Scripps did not use the mark for television entertainment on or before her date of filing the underlying application. However, as to the services of organizing and conducting polo events for fund raising, the Board ruled that Scripps had not abandoned the mark despite two years of nonuse because she did not have an intent not to resume use. American Polo Association, LLC v. Elizabeth Scripps, Cancellation No. 92066032 (December 19, 2019) [not precedential] (Opinion by Deputy Chief Judge Mark A. Thurmon). [Correction to final decision here].

Nonuse: The evidence showed that Scripps "hoped to produce an ongoing television program, but had not done so on or before the application filing date." She produced three short, unconnected videos that did not constitute the "ongoing television programs" that she claimed. And so the Board granted the petition for cancellation as to these services.

Abandonment: As the services of organizing and conduction polo events, Scripps did use the mark before her filing date. Petitioner failed to prove a three-year period of nonuse, and so the statutory presumption of abandonment was not applicable. Instead, petitioner had to establish that Scripps stopped using the mark with an intent not to resume use.

The evidence did establish that Scripps stopped using the mark for two years. However, Respondent Scripps presented unrebutted testimony that she “experienced severe, life threatening medical issues" during that period. [The Board stated in a footnote that this testimony explained and excused the period of nonuse.]  Other evidence, including emails and Facebook posts, showed that she did not intent not to resume use. There was no evidence that she did.

And so the Board denied the petition for cancellation as to Scripps' services of organizing and conduction polo events.

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TTABlog comment: One can get tied up in "nots" when it comes to discussing abandonment.

Text Copyright John L. Welch 2019.