CAFC Affirms TTAB: "BF-7" Registration for Nutritional Supplements Invalid Due to Non-Ownership

In a non-precedential ruling, the CAFC affirmed the Board's decision (here) ordering cancellation of a registration for the mark BF-7 for "nutritional supplement goods" on the ground that Registrant Sunbio was not the owner of the mark at the filing date of the underlying application because it had not used the mark. The court rejected Sunbio's arguments that (1) it did not have proper notice of the theory on which cancellation was based, and (2) the Board's finding of nonuse was not supported by substantial evidence. Biogrand Co., Ltd. v. Sunbio Corporation, 2021 USPQ2d 1220 (Fed. Cir. 2021) [not precedential].

Notice: Appellant Sunbio claimed that is was not aware of Biogrand's non-ownership theory until Biogrand's reply brief, at which time it was too late for Sunbio to address the issue. The court, reviewing the record, disagreed, concluding that Sunbio was put on notice of the non-ownership issue by Biogrand's opening brief. In fact, Sunbio addressed that argument in its responding brief.

Evidence of Non-ownership: The court found that the record evidence of non-ownership "more than satisfies the substantial evidence standard." Sunbio's specimen of use (shown above) did not display Sunbio's company name. The testimony indicated that this sample product was made for a company called SmartNutri. Documents showed that Sunbio was merely a middle-man in the sale of product by SmartNutri to its customers.

Furthermore, Sunbio's website promoted a product called "CERA-Q" and not the BF-7 product, and the website of Sunbio's sole customer also referred to the same CERA-Q mark. However, SmartNutri's website showed a product promoted by the BF-7 trademark.

The record evidence, viewed collectively, provides ample support for the Board’s finding that "all indicia point to SmartNutri as being the owner of the BF-7 mark when [Sunbio] filed its underlying trademark application.

Finally, the CAFC agreed with the Board that SmartNutri's use of the BF-7 mark could not be attributed to Sunbio under the "related company" doctrine. Although SmartNutri was founded and formerly controlled by one Mr. Chang, who also founded Sunbio, he maintained the companies as two separate entities. Sunbio did not exercise control over the nature and quality of Smartnutri's product and there was no agreement between the two regarding use of the mark.

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TTABlogger comment: The CAFC opinion says that "the Board cancelled the mark." However, registrations are cancelled, not marks.

Text Copyright John L. Welch 2021.